
Class L C H 3 



Book > L. 



PRESENTED BY 



THE 



Bible in the Public Schools, 



AEGUMENT8 

IN THE CASE OF 
Versus 

%t §odi[d of §diWition of t\\t ^ittt of (^incinmii et al 



SUPERIOR COURT OF CINCINNATI. 



WITH THE 

OPINIONS AND DECISION 

Of tlie Court. 



CINCINNATI: 
ROBERT CLARKE & CO. 

1870. 






Entered according to Act of Congress in the year 1870, 

By ROBERT CLARKE & CO. 

In the Clerk's Office of the District Court of the United States for the Southern 
District of Ohio. 



Superior Court of Cincinnati 



John D. Minor, Samuel P. Bishop, Charles W. Rowland, 
James F. Irwin, William Clendenin, William M. F. 
Hewson, David Judhins, Charles Bonsall, Jfaihaniel 
Goldsmith, R. P. Bradford, William J. Dunlap, James 
F. Cunningham, Andrew Miller, William H. McRey- 
nolds, August Hoeltge, John M. Brown, Edward Betty, 
Martin B. Coney, 0. Jf. Bush, Matthew Addy, John 
L. Talbott, John Richards, Philip Hinhle, Charles M. 
Ranhin, J. B. Chichering, Addis E. Chamberlain, 
James W. Sibley, AntJvony H. Hinhle, John E. Bell, 
Enoch T. Carson, John W. Williams, John J. Hooker, 
James H. Laws, John Pfaff, Abraham Spring ett, Pitts 
H. Burt, and John Simphinson, on behalf of them- 
selves and many others, citizens and tax-payers of 
Cincinnati, Plajntiffs, 



The Board of Education of Cincinnati, W. J. O'Neil, J. H. 
Brunsman, J. W. B. Kelley, Peter Gibson, Edgar M. 
Johnson, C. C. Campbell, Benjamin J. Ricking, D. J. 

Mullaney, Henry W. Poor, W. I. Wolfiey, Joseph P. 

2 



Superior Court of Cincinnati. 



Minor et al. v. Board of Education of Cincinnati et al. 



Carbery, F. Macke, H. P. Seibel, C. F. Bruckner, 
Stephen Wagner, C. H Gould, Joseph Kramer, F. W. 
Bauch, Henry L. Wehmer, William Kuhn, Thomas 
Vichers, Howard Bouglass, J. C Krieger, A. Theur- 
hauf, John Sweeney, George B. Temple, G. W. Gladden, 
Henry Mack, Abner B. Frazer, A. B. Mayo, John P. 
Story, Francis Ferry, J. B. Brake, Samuel A. Miller, 
Bouis Ballauf, Henry Bohling, Herman Eckel, J. F. 
Wisjieiuski, James T. Fisher, J. H. Rhodes, W. F. 
Hurlbut, and the City of Cincinnati, Defendants. 



Petition 

Filed November 2, 1869. 

The plaintiffs, who bring this action on their own behalf, and 
on behalf of many others, say that they and those on whose 
behalf they sue, are citizens and tax-payers of the city of Cincin- 
nati. That on the 1st day of November, a. d. 1869, the 
Board of Education of said city, at -a regular meeting thereof, then 
held, passed the following resolutions by the vote of a majority 
of the members, to-wit: by the votes of W. J. O'Neil, J. H. 
Brunsman, J. W. B. Kelly, Edgar M. Johnson, Benjamin J. Rick- 
ing, D. J. Mullaney, Henry W. Poor, Joseph P. Carbery, F. 
Macke, H. P. Seibel, C. F. Bruckner, Stephen Wagrfer, Joseph 
Kramer, F. W. Rauch, Thomas Vicker's, A. Theurkauf, John 
Sweeney, George D. Temple, John P. Story, Samuel A. Miller, 
Herman Eckel, J. F. Wisnewski, defendants, and members of said 
board : 

"Resolved, That religious instruction, and the reading 
of religious books, including the Holy Bible, are prohib- 



Petition. 

Minor et al. -v. Board of Education of Cincinnati et al. 



ited in the Common Schools of Cincinnati, it being the 
true object and intent of this rule to allow the children of 
the parents of all sects and opinions, in matters of faith 
and worship, to enjoy alike the benefit of the Common 
School fund. 

. Ci Resolved, That so much of the regulations on the 
course of study and text books in the Intermediate and 
District Schools (page 213, Annual Report), as reads as 
follows: 'The opening exercises in every department shall 
commence by reading a portion of the Bible by or under 
the direction of the teacher, and appropriate singing by 
the pupils,' be repealed." 

Plaintiffs state that the entire rule quoted from is in the words 
following : 

cc The opening exercises in every department shall 
commence by reading a portion of the Bible by or under 
the direction of the teacher, and appropriate singing by 
the pupils. The pupils of the Common Schools may 
read such version of the sacred scriptures as their parents 
or guardians may prefer, provided that such preference of 
any version, except the one now in use, be communicated 
by the parents and guardians to the principal teachers, and 
that no notes or marginal readings be allowed in the 
schools, or comments made by the teachers on the text 
of any version that is or may be introduced." 

Plaintiffs say that the rule last above quoted was adopted by the 
Board of Education of the city of Cincinnati, said board then being 
known as the Board of Trustees and Visitors of Common Schools, 
in the year 1852, and has ever since that time been in full force 



Superior Court of Cincinnati. 



Minor et al. -v. Board of Education of Cincinnati et al. 



and effect, as one of the rules for the conduct of the schools of the 
said city, and that the version of the Holy Bible generally used in 
said schools, and referred to in the rule last above quoted as "the 
one now in use," is that published by the "American Bible Society," 
and commonly known as King James' version. Plaintiffs further 
say that the reading of the Holy Bible without note or comment 
has been one of the daily exercises of said schools from the time 
of their first establishment under the general school laws of Ohio, 
to-wit : from about the year 1829, till now, and that instruction in 
the elemental truths and principles of religion has always been 
given in said schools, but no sectarian teaching, nor any inter- 
ference with the rights of conscience has at any time been per- 
mitted. That in the year 1842 the School Board of said city, by 
unanimous vote, provided that no' pupil of the Common Schools 
of said city should be required to read the Testament or Bible if 
his parent or guardian should desire that said pupil should be 
excused from that exercise ; that said provision has never been 
repealed, but the same is yet in full force. 

Plaintiffs further say, that a large number of the text books 
used in said schools contain selections and passages from the Holy 
Bible, and from other books, and from writings which inculcate 
religious truths ; that this is especially true as to the readers in 
common use in said schools ; that every series of school readers 
accessible for use in said schools recognizes and inculcates religion, 
and that text books which omit all religious instruction, and yet 
contain the principles and teachings of those branches of knowl- 
edge usual and necessary for the instruction of the youth in said 
schools, are not extant, and can not be had. That the enforce- 
ment of the rule proposed by said Board of Education, and so 
passed as aforesaid, will exclude from said schools large numbers 
of valuable text books which have been recently purchased by 
parents or guardians for the use of children attending said schools 
in compliance with the requirements of said Board of Education, 
.and will require the preparation and publication of new text books, 
and their purchase at great expense by said parents or guardians, 
without any corresponding benefit to said children or said schools, 
but, on the contrary, to their great detriment and injury. 

Plaintiffs further say, that a large majority of the children in said 



Petition. 

Minor et ah <v. Board of Education of Cincinnati et al. 



city who receive any education are educated in said schools, and of 
said children large numbers receive no religious instruction or 
knowledge of the Holy Bible, except that communicated as afore- 
said in said schools, and that the enforcement of the resolutions 
first aforesaid will result in leaving such children without any 
religious instruction whatever. And the plaintiffs allege that such 
instruction is necessary and indispensable to fit said children to be 
good citizens of the State of Ohio and of the United States : and 
is required by the third article of the act passed by the Congress of 
the United States, July 13, 1787, entitled "An ordinance for the 
government of the territory of the United States north-west of the 
river Ohio," to be forever encouraged. 

Wherefore, the plaintiffs allege that the action and resolutions 
aforesaid of said Board of Education are in violation of law and 
against public policy and morality, and are an abuse of the author- 
ity vested by law in said board ; that said resolutions are in contra- 
vention of the true meaning and intent of the constitution of 
the State of Ohio, and, if carried into operation, will greatly injure 
the Common Schools of said city, which, under the rules and sys- 
tem of instruction above set forth and heretofore adopted, have 
been in the highest degree successful and useful to the children of 
said city, and have contributed and are contributing largely to the 
welfare and prosperity of the city itself. And plaintiffs further 
allege that the enforcement of said resolutions will have the effect 
to make said schools deistical and infidel both in their purpose and 
tendency. Plaintiffs further allege that said resolutions have not 
yet been promulgated to the teachers of said schools, nor put in 
operation therein, but that said Board of Education, unless restrained 
by order of this Court, will proceed immediately to enforce the 
same, to the great and irreparable injury of the plaintiffs and those 
for whom they sue, and of said schools and said city. 

. Plaintiffs further allege, that the individuals who are named as 
defendants are, with the exception of W. F. Hurlbut, members of 
said Board of Education, duly elected and qualified, and, by virtue 
of their election and qualification, are acting as Trustees and Vis- 
itors of said Common Schools, and that the defendant W. F. Hurl- 
.but is Clerk of said Board of Education, and the rules of the board 
require him to furnish principal teachers copies of all rules and 



io Superior Court of Cincinnati. 

Minor et ai -v. Board of Education of Cincinnati et al. 

resolutions adopted for the regulation of the schools. Plaintiffs 
further allege, that the corporate authorities of the city of Cincin- 
nati are authorized and required by law to provide for the support 
and regulation of the said schools in the manner prescribed by 
said act. 

Plaintiffs further allege, that they have requested the City 
Solicitor of said city to apply for an injunction upon the case herein 
stated, and he has failed and refused, and still refuses, so to do. 

Wherefore, plaintiffs pray that the defendants, each and all of 
them, be restrained from promulgating, putting in operation or 
enforcing said resolutions, passed November I, 1869, as above set 
forth, or either of them, and from authorizing, directing, or requiring 
any officer, or agent, or employe of said board, or any teacher in 
any of said schools, to promulgate, put in operation, enforce, or 
obey said resolutions, or either of them, or any of the prohibitions 
therein contained ; that upon final hearing said injunction be made 
perpetual, and said resolutions be adjudged null and void, and such 
other and further relief granted as, the premises considered, may be 
just and proper. 

SAGE & HINKLE, 

WM. M. RAMSEY, 

KING, THOMPSON & AVERY, 

Attorneys for Plaintiff's. 



State of Ohio, Hamilton County. 

Charles Bonsall, one of the plaintiffs, solemnly affirmed, says 
that the allegations of the foregoing petition are true. 

CHARLES BONSALL. 

Affirmed to before me, and subscribed in ray presence, this 
2nd day of November, a. d. 1869. 

[seal.] JULIUS DEXTER, 

Notary Public, Hamilton County. 



Restraining 0?'der, Etc. n 

Minor et a/, -v. Board of Education of Cincinnati et al. 



RESTRAINING ORDER. 

Superior Court of Cincinnati, November 2, 1869. 

John D. Minor et al., 

- Plaintiffs, 
v. 

/ Jyjtinutes 3 2"2 
The Board of Education of the City of( 

Cincinnati et al., 

Defendants. 

" On the application of the plaintiffs that a restraining order be 
allowed to issue against said defendants upon the matters alleged in 
the petition and affidavit filed, it is ordered that the defendants 
show cause on Thursday, November 4, at 10 o'clock, in Room 
No. 3, of the Superior Court, why the said application be not 
granted, and that in the meanwhile the resolutions of the defend- 
ants^ as charged in said petition, be not further acted on until the 
hearing of this application." 



ORDER OF. NOVEMBER 4, 1869. 

Minutes, 325. 

By consent, the hearing of the cause upon the order hereinbe- 
fore made, is continued until Saturday, November 7th, 1869, at 10 
o'clock, A. M., and the order of restraint hereinbefore made is con- 
tinued and to remain in full force and effect until otherwise ordered. 



[On the 7th of November the Court, with the consent of all par- 
ties, assigned the case for hearing before the full bench on Monday, 
November 30th, and it was agreed that the answers of the defend- 
ants should be filed, and the order of reservation made, at 'the con- 
venience of counsel. No minute entry was made on the 7th.] 



12 Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et al. 



ANSWER OF THE DEFENDANTS NAMED 
THEREIN, FILED NOVEMBER 26, 1869. 

Superior Court of Cincinnati. 

John D. Minor et ai, 

Plaintiffs, 
v. 

The Board of Education of the City of 
Cincinnati et al., 

Defendants. 

The Board of Education of the City of Cincinnati, the City of 
Cincinnati and W„ J. O'Meil, J. H. Brunsman, J. W. B. Kelley, 
Edgar M. Johnson, Benjamin J. -Ricking, D. J. Mullaney, Henry 
W. Poor, Joseph P. Carbery, F. Macke, XL P. Seibel, C. F. 
Bruckner, Stephen Wagner, Joseph Kramer, F. W. Rauch, Thos. 
Vickers, A. Theurkauf, John Sweeney, George D. Temple, John P. 
Story, Samuel A. Miller, Herman Eckel, J. F. Wisnewski and H. L. 
Wehmer, defendants in the above entitled action, in answer to the 
petition say : That it is true that on the 1st day of November, 1 869, 
said Board of Education passed the resolutions in said petition set 
forth ; that these defendants also believe it to be true that the rule 
abrogated by said resolutions was adopted by the Board of Trustees 
and Visitors of the Common Schools in 1852; that it is also true that 
the version of the Bible generally in use in the common schools of 
Cincinnati is that known as King James' Version ; that these defend- 
ants are not informed as to the truth of the allegation in the peti- 
tion respecting the action of the School Board in 1842, but that if 
said allegation be true the rule claimed in the petition to have been 



Answer of Defendants. 13 

Minor ct al. v. Board of Education of Cincinnati et al. 

adopted in 1842 has long since ceased to be acted upon or to be 
recognized as of binding force, the same not being found among 
the standing rules published and promulgated by the School Board, 
or Board of Education, during the last twenty-five years ; that the 
sole version of the Bible which has been read in the common 
schools at any time within the knowledge of the defendants is that 
known and described in the petition as the King James' Version ; 
that it is true that there are books other than the Bible now in use 
in the common schools of Cincinnati, which contain passages and 
selections from the Bible, and from writings inculcating truths 
which by many persons are designated as religious truths, but that 
such books are not religious books, and are not used for the pucpose 
of conveying religious instruction ; that these defendants believe it 
to be true that a number of children, who are educated in the 
common schools, receive no religious instruction or knowledge of 
the Bible except that communicated in said schools j that while the 
defendants do not deny that religious instruction is necessary and indis- 
pensable to fit said children to be good citizens of the State of Ohio, 
and of the United States, they deny that such instruction can or ought 
to be imparted in the schools established by the State ; and these 
defendants say that it is true that the individuals named as defendants, 
are, with the exception of W. F. Hurlbut, members of said Board of 
Education, duly elected and qualified, and that said W. F. Hurlbut 
is clerk of said board, and that his duties are correctly described in 
the petition ; and these defendants deny each and every other alle- 
gation of the petition which is not hereinbefore admitted. 

And said defendants further answering, say that the citizens of 
Cincinnati, who are taxed for the support of the schools under the 
management of said Board of Education, and all of whom are 
equally entitled to the benefits thereof by having their children 
instructed therein, are very much divided in opinion and practice 
upon matters connected with religious belief, worship and educa- 
tion ; that a considerable number thereof are Israelites who reject 
the Christian religion altogether, and believe only in the inspired 
truth of what is known as the Old Testament, and this only in the 
original Hebrew tongue, and such other religious truths and wor- 
ship as are perpetuated in their body by tradition ; that also, many 
of said citizens do not believe the writings embraced in the Bible 



14 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et aJ. 

to be entitled to be considered as containing an authoritative decla- 
ration of religious truth ; that a still greater number of said citizens 
together with their children are members of the Roman Catholic 
Church, and conscientiously believe in its doctrines, faith and 
forms of worship, and that by said church the version of the scrip- 
tures referred to in the petition, is taught and believed to be incor- 
rect as a translation and incomplete by reason of its omission of a 
part of the books held by such church to be an integral portion of 
the inspired canon ; and furthermore, that the scriptures ought not 
to be read indiscriminately, in as much as said church has divine 
authority as the only infallible teacher and interpreter of the same, 
and that the reading of the same without note or comment, and 
without being properly expounded by the only authorized teachers 
and interpreters thereof, is not onlv not beneficial to the children 
in said schools, but likely to lead to the adoption of dangerous errors, 
irreligious faith, practice and worship, and that by reason thereof the 
practice of reading the King James' version of the Bible, commonly 
and only received as inspired and true by the Protestant religious 
sects, in the presence and hearing of Roman Catholic 'children, is 
regarded by the members of the Roman Catholic Church as con- 
trary to their rights of conscience, and that such practice as hereto- 
fore pursued has had the necessary effect to prevent the attendance 
of large numbers of children of those who are members of said 
church, who, in consequence thereof have erected, and now maintain, 
separate schools at their own expense, in which there are enrolled 
and taught a number, about two-thirds of the number of those who 
are enrolled and taught in the schools under the management of 
•said Board of Education ; that also there are other religious sects 
and denominations and bodies of citizens who either do not regard 
the Bible as. the authoritative source of religious truth, or who 
regard themselves as possessed of the only true sense thereof; that 
furthermore, a large number of persons in this community who are 
ready and qualified to act as teachers in said public schools object 
to the reading of the Bible in the version in use (or, indeed, in any 
version without note or comment) on conscientious grounds, and 
are thereby precluded from employment as teachers in said schools j 
that in consideration of these facts said Board of Education has con- 
cluded that it was not possible for it to take upon itself any instruc- 



Answer of Defendants. ie 

Minor et. al -v. Board of Education of Cincinnati et al. 

tion in religion, and that it is neither right no.r expedient to continue 
in use in said public schools the reading of any version of the Bible 
as a religious exercise, or any other religious exercise whatever, and 
therefore has passed the resolutions now complained of by the 
plaintiffs. 

These defendants pray to be dismissed with their costs. 

WALKER & CONNER, 

Solicitors for City. 
S. & S. R. MATTHEWS, 
GEO. HOADLY, 
STALLO & KITTREDGE, 

Attorneys for other Defendants. 

State of Ohio, Hamilton County, ss : 

Henry L. Wehmer being duly sworn, deposes and says that he 
is the President of the Board of Education of the city of Cincinnati, 
one of the defendants in the above entitled action, and that he 
believes the statements contained in the foregoing answer to be 
true. 

H. L. WEHMER. 

Sworn to before- me, by said Henry L. Wehmer, and by him 
subscribed in my presence, this 23d day of November, 1869. 
[l. s.] ED. H. KLEINSCHMIDT, 

Notary Public, 



1 6 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 



ANSWER OF WM. F. HURLBUT. 

Superior Court of Cincinnati. 
John D. Minor et al., 

Plaintiffs, 

Filed Nov. 27, 
The Board of Education of the City ( 1869. 

of Cincinnati et al., 

Defendants. 

The defendant, William F. Hurlbut, admits that he is the 
clerk of the Board of Education of the city of Cincinnati, and says 
that he has been such since the 23d of March, a. d. 1857. 

He further admits that the statement of his duties in the peti- 
tion is correct, and that the Board, on the 1st day of November, 
a. d. 1869, passed the resolutions set forth in the petition, and that 
the same are in his hands for promulgation, subject to the order of 
the Court in this cause. 

As to the other facts set forth in the petition, this defendant says 
he is not advised, and consents that this cause be heard and decided 
as to them upon the issues made up by the plaintiffs and his co- 
defendants. 

W. F. HURLBUT, 
Clerk of the Board of Education of Cincinnati. 

State of Ohio, Hamilton County: 

William F. Hurlbut, the above-named defendant, being first 
solemnly sworn, says that he believes the allegations of the fore- 
going answer to be true. 

W. F. HURLBUT, 
Clerk of the Board of Education of Cincinnati. 

Sworn to before me, and subscribed in my presence, this 27th 
November, 1869. 

T. BISHOP DISNEY, 

Clerk Superior Court Cincinnati. 



■Answer of Minority. 17 

Minor et al. -v. Board of Education of Cincinnati et al. 



ANSWER OF THE MINORITY OF THE BQARD 
OF EDUCATION. 

Superior Court of Cincinnati. 
John D. Minor et al., 

Plaintiffs, 
v - ( Filed Nov. 29, 

The Board of Education of the City / i860. 

of Cincinnati et al., 

Defendants. 

The defendants, A. D. Mayo, Abner L. Frazer, C. C 
Campbell, Louis Ballauf, Henry Bohling, W. I. Wolfley, J. L. 
Drake, Peter Gibson, G. W. Gladden, Howard Douglass, C. H. 
Gould, William Kuhn, Henry Mack, and J. H. Rhodes, for 
answer say : That the resolutions in the petition set forth were 
adopted by a majority of said Board of Education against the open 
and persistent opposition and over the votes of these defendants 
against said adoption, as will appear by the journal of said Board. 

And the defendant, Francis Ferry, says, that at the time of 
the submission of said resolutions to vote, he was absent from the 
meeting of said Board, but that he afterward caused his vote to be 
entered on said journal as against said resolutions. 

And all said defendants disclaim all connection with and 
responsibility for said resolutions. 

A. D. MAYO, LOUIS BALLAUF, 

ABNER L. FRAZER, C. H. GOULD, 

J. H. RHODES, C. C. CAMPBELL, 

G. W. GLADDEN, WM. I. WOLFLEY, 

FRANCIS FERRY, J. L. DRAKE, 

HENRY MACK, H. BOHLING, 

WM. KUHN, PETER GIBSON. 

HOWARD DOUGLASS, 

Verification waived. 

SAGE & HINKLE, for Plaintiffs. 
STALLO & KITTREDGE, for other Def'ts. 



Superior Court of Cincinnati. 



Minor et al. <v. Board of Education of Cincinnati et al. 



AGREED STATEMENT OF TESTIMONY. 

Superior Court of Cincinnati. 

John D. Minor et al., 

Plaintiffs, 

Filed Nov. 27, 
The Board of Education of the City ( 1869. 

of Cincinnati et al,, 

Defendants. 

Be it remembered that at the hearing of the above-mentioned 
action, at special term of November, A. d. 1869, the plaintiffs to 
maintain their case offered and read in evidence a certified copy of 
the proceedings and resolutions passed by the Board of Trustees 
and Visitors of the Public Schools of the City of Cincinnati, at a 
meeting on August 29, 1842, which is hereto annexed and marked 
Exhibit I. 

Also, certified copy of an extract from theannual report for 
the year ending June 30, 1853, published by said Board, which is 
hereto attached and marked Exhibit 2. 

Also, certified copy of an extract from the annual report for 
the year ending June 30, 1862, published by said Board, which is 
hereto annexed and marked Exhibit 3. 

And they also offered and read in evidence six books, here- 
with filed and referred to, as part hereof, marked respectively 
Exhibit 4, Exhibit 5, Exhibit 6, Exhibit 7, Exhibit 8, and Exhibit 
9, and marked with the style and number of this cause. 

Exhibit 4 being entitled " McGuffey's New First Eclectic 
Reader." 



Agreed Statement of Testimony. 19 

Minor et al. -v. Board of Education of Cincinnati et al. 



t 5 being entitled " McGuffey's New Second Eclectic 
t 6 being entitled " McGuffey's New Third Eclectic 
t 7 being entitled " McGuffey's New Fourth Eclectic 
t 8 being entitled " McGuffey's New Fifth Eclectic 
t 9 being entitled " McGuffey's New Sixth Eclectic 



Exhibi 
Reader." 

Exhibi 
Reader." 

Exhibi 
Reader." 

Exhibi 
Reader." 

Exhibi 
Reader." 

And plaintiffs offered evidence tending to show that said six 
readers are, and for more than twenty years have been, used in the 
several grades of the public schools of said city as the regular and 
only authorized text books for lessons in reading. 

And the defendants offered evidence tending to show that the 
rule referred to, as above adopted in 1842, has long since ceased to 
be acted upon or recognized as of binding force, and that the same 
is not found among the standing rules published and promulgated 
by the School Board of Education during the last twenty-five 
years. 

This being all the testimony offered on either side, the case 
was submitted upon the pleadings and evidence to the Court, all of 
which is certified by the Judge presiding at special term. 

B. STORER [seal]. 



20 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 



EXHIBIT i. 

Extract from the Minutes of the School Board of Cincinnati : 

"Council Chamber, August 29, 1842. 

" The Board met pursuant to adjournment. Present — Mr. 
Perkins, President, and Messrs. Bonsall, Mulford, Meader, Symmes, 
Morrison, and Poor. 

" The President having informed the Board that the Bishop 
of the Catholic Church had told him, in private, that certain 
objections existed to the English common schools, and also to the 
German common schools, on the part of the Catholics, viz : 

" 1. That the books used contained obnoxious passages. 

" 2. That the Catholic children are required to read the 
Protestant Testament and Bible ; and 

" 3. That the district libraries contain objectionable works, to 
which the Catholic children have access without the knowledge of 
their parents. 

" Thereupon, the following resolutions were submitted by him 
and adopted : 

"Resolved^ That the President of this Board be requested to 
inform Bishop Purcell that he is invited by the Board to examine 
the books used in the English common schools and the German 
common schools, or. to cause them to be examined, and all obnox- 
ious passages pointed out. 

" 2. Resolved, That no pupil of the common schools be 
required to read the Testament or Bible, if its parents or guardians 
desire that it may be excused from that exercise. 

"3. Resolved^ That no child shall be allowed to take books 
from the district libraries, unless at the beginning of each session 
its parent or guardian make the request, in writing or in person, 
that it may have that privilege." 

I hereby certify that the foregoing is a correct copy from the 
Minutes of the School Board, under the date above mentioned. 

W. F. HURLBUT, 

Clerk of Board of Education. 
Cincinnati, November 26, 1869. 
V 



Exhibit 1. 11 

Minor et al. <v. Board of Education of Cincinnati et al. 



EXHIBIT 2. 

I also'certify that the following is a correct extract from the 
Twenty-third Annual Report of the Common Schools of Cincin- 
nati, for the school year ending June 30, 1853 (P a g e 1 9)- 

W. F. HURLBUT, 

Clerk of Board of Education. 
Cincinnati, November 26, ii 



"But to the charges, on one hand, of using sectarian or 
obnoxious text books, which render the schools intolerable by 
violating the rights of conscience, and upon the other hand, that 
we are indifferent to religion and morality, and devote our schools 
too much to mental instruction merely— to charges of this nature, 
very freely, and as it seemed to us, inconsistently used in the late 
discussion respecting the schools, we must be expected to answer, 
as the culpability, if any, attaches to this Board. 

"Avowing this responsibility, we take occasion to say again 
that everything in our power has been done to obviate the first of 
these complaints, so that our schools may be in fact what they are 
in law, free and common to all. Whatever in the text-books or 
administration of the schools is justly offensive, we have again and 
again consented, if it be inconsistent with the truth, or even though 
true, if immaterial in its character or matter, to abrogate, whenever 
it is pointed out." 
3 



22 Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et al. 



EXHIBIT 3. 

I further certify that the following is a correct extract from 
the Thirty-third Annual Report of the Common Schools of Cin- 
nati, for the school year ending June 30, 1862 (see pp. 12 and 13). 

W. F. HURLBUT, 

Clerk of Board of Education. 
Cincinnati, November 26, 1869. 

"We are forced, very reluctantly, to notice intimations from 
an influential quarter, that the division of the school fund must and 
will be again agitated and demanded. We should be relieved from 
anv. necessity of reply as to this point by the fact that the Constitu- 
tion of the State imperatively prohibits the right or control of any 
part of the school funds by any religious or other sect. The threat 
is accompanied, however, by reproaches against our schools, so 
groundless and so easily refuted, that we need only state as facts 
that for twenty years .our standing request that any offensive exer- 
cises, ».or books, or passages in books, used in our schools, be made 
known to us, has never been answered ; that for nearly ten years 
we have offered to supply teachers and schools in every orphan 
asylum whatever having a sufficient number of children to warrant 
the employment of a teacher ; that we have always carefully ex- 
cused pupils whose parents desired it from attending the religious 
exercises with which our schools are daily opened, and that, in 
order to encourage pupils to attend the religious teachings which 
their parents prefer, we have expressly required that they shall be 
excused from school one half day, or two quarter days each week. 
It has also been suggested, and, doubtless, such an arrangement 
may be effected, if sufficient numbers encourage it, that at the hours 
so allowed children of different denominations of religion might 
receive the instructions of the clergy in school-rooms temporarily 
set aoart to them." 



Order of Reservation. 23 

Minor ct al. -v. Board of Education of Cincinnati et al. 



ORDER OF RESERVATION. 

Superior Court of Cincinnati, November 27, 1869. 
John D. Minor et al., 

Plaintiffs, 

25,245.] v. 

) Minutes, 438. 
The Board of Education of the City 

of Cincinnati et al., 

Defendants. 

This cause came on to be heard upon the petition, answers, 

agreed statement of testimony, and exhibits filed, and upon the 

plaintiffs' motion for injunction, was thereupon reserved to the 

General Term of this Court for hearing by the full bench, on 

Monday, November 30, at 10 o'clock A. m. 



Monday, November 30, 1869. 
The parties, by their attorneys, appeared before the Court in 
General Term, Judges Storer, Taft, and Hagans upon the bench. 
The pleadings and agreed statement of fact having been read, it 
was announced that the Court would hear three counsel on each 
side ; and it was arranged that Mr. Ramsey should open the argu- 
ment for the plaintiffs, that Judges Stallo and Hoadly should follow 
for the defense, then Mr. Sage for the plaintiffs, and that Judge 
Matthews should close for the defendants and Mr. King for the 
plaintiffs. The argument then proceeded in the order indicated. 



Argument of W. M. Ramsey, 

For the Plaintiffs. 



May it Please Your Honors — I approach the discussion 
of the questions involved in this cause with great diffidence. These 
questions had not been, prior to the inception of this cause, the 
subject of especial reflection or investigation upon my part, and 
they are not within the scope of ordinary professional study or 
experience. Profoundly conscious as I am that we are entering 
upon an inquiry of a very high order, in the ultimate determination 
of which the welfare of this community, and, perhaps, of the State 
and nation, is deeply involved, I can not but regret that the part 
which has been assigned. to me had not devolved upon one more 
able to maintain it. 

So far, however, as I shall be permitted to address your 
Honors, I will endeavor to keep constantly in view that this is a 
court of law, and not a popular assemblage— a court, convened 
to administer a well-defined system of jurisprudence, under solemn 
responsibility, and I will, therefore, address to the Court only such 
considerations, drawn from the statute books, and from the historical 
and judicial records of the State and nation, as shall seem to have a 
legitimate place in a discussion of such a character. 

Your Honors have heard the facts of the case, as set forth in 
the pleadings of the parties, and the further agreement as to 
evidence, and I need not repeat them. It is proper to say that it 
has been the wish of the defendants, as well as of the plaintiffs, to 
strip the case of all technicalities, and mere questions of practice, 



i6 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

in order that a complete and satisfactory decision upon the merits 
of the questions involved should be had. 

The important questions that might arise in another form of 
action, touching the organization, and involving even the existence 
of the School Board, will not be presented here. These questions 
courd hardly be properly raised in an action of this nature. The 
Board is, at all events, assuming to exercise certain powers under 
authority of law — the validity of the claim to general power is 
properly the subject of inquiry in proceedings of quo warranto, 
which may be instituted by the proper authority in pursuance of 
the statute in that behalf. No question has been made by the 
defendants as to the jurisdiction of the Court, or the legal capacity 
of the plaintiffs to bring the action. 

I desire to say, however, because there has been some misap- 
prehension upon the subject, that the power of courts of equity to 
arrest and forbid the illegal action of public officers, is as familiar, 
as unquestioned, and as freely exercised, as airy other. It is the 
duty of courts to interpret and administer the laws, and in the exer- 
cise of these high functions they may enjoin and forever prohibit 
even the execution of an act of the Legislature, if, in the judgment 
of the Court, it contravenes the fundamental law. It is their duty 
to preserve and protect the rights of individuals or communities, no 
matter by whom or by what asserted authority they are assailed, 
and they will, and do, lay their hands upon the State itself, when, 
through its agents, it attempts the exercise of power it does not 
possess. No surprise was felt when your Honors forbade the execu- 
tion of a contract between the city, acting by its Common Council, 
the municipal legislature, and an individual who proposed to use 
the lamp-posts in the streets for advertising purposes. No surprise 
was expressed when the District Court enjoined the execution of a 
contract to supply the city of Covington with water. It is the 
glory of our institutions that we have no where'lodged any absolute 
discretionary power. These public officers are appointed to the 
work of executing the law, not their own will. Municipal corpo- 
rations, as well as private corporations, are invested with certain 
well defined powers, beyond which they can not go. Even the 
discretion with which the Court itself is invested, which is not 
ordinarily reviewable upon error, may be reviewed if it appears to 



Argument of W. M. Ramsey. 27 

Minor et al. -v. Board of Education of Cincinnati et al. 



be exercised wantonly or capriciously. The Board of Education 
of the city of Cincinnati, the city itself, is amenable to the pro- 
cess and the decree of this Court, in the same manner arid to the 
same extent as the humblest citizen. 

There is, then, nothing to hear in the present case but its 
merits. I address myself, therefore, directly to the question : 
"Are the plaintiffs entitled to the relief prayed for ? " 

I choose to anticipate and to concede all that will be claimed 
upon the part of the defendants, as to the general nature of the case 
which must be presented by the plaintiffs. It will not be sufficient 
to show that the defendants, in taking the action complained of, 
committed a mere error of judgment. It must be shown that the 
action is illegal, either by reason of positive prohibition, or the 
entire absence of statutory authority, or that, in the exercise of 
power over a subject within, their general control, they have acted 
so capriciously, so wantonly, so injuriously, as to warrant the Court 
in holding that their action was not directed by a proper sense of 
duty, and that it is, therefore, unlawful and void. The plaintiffs 
must make a strong case — the right must be clear— the threatened 
injury great, with the entire absence of any other remedy than that 
which is here invoked. 

To show themselves entitled to the relief prayed for, the 
plaintiffs must establish two propositions : 

First. That religious instruction is, in contemplation of law, 
an essential element in our common school system of education. 

Second. That the Board of Education of the city of Cincin- 
nati has not power to prohibit all religious instruction in the schools 
of the city. 

These propositions will be met, it may fairly be anticipated, 
by — 

First. A general denial. 

Second. The affirmation that, irrespective of any action upon 
the part of the School Board, religious instruction is unlawful. 

I respectfully submit that religious instruction is an essential 
part of our common school system of education. 

Our common school system was organized under the Consti- 
tution of 1802. Schools were established by the Legislature, in 
obedience to the direction of the Constitution itself. That direction 



Superior Court of Cincinnati. 



Minor et al. v. Board of Education of Cincinnati ct al. 



is contained in the following words, constituting the concluding 
sentence of the third section of the Bill of Rights : 

" Religion, morality and knowledge being essentially necessary 
to good government and the happiness of mankind, schools and the 
means of instruction shall forever be encouraged by legislative 
provision, not inconsistent with the rights of conscience/' 

This is not the announcement of a mere abstract principle for 
the information of the people. It is the solemn and authoritative 
declaration of organic law. It is a command to the legislative 
department of the State government to accomplish certain ends by 
certain means, and clearly indicating both means and ends. 

The school established by the Legislature is, it will scarcely 
be denied or doubted, the school contemplated by the^Constitution. 
There was no power to establish any other. Let, then, the 
language of the Constitution be fairly analyzed, that it may be 
fairly interpreted, for by the result of that analysis and consequent 
interpretation must this cause be determined. We find here the 
declaration that "religion, morality and knowledge" are "essen- 
tially necessary to good government and human happiness." " Re- 
ligion, morality and knowledge" are, therefore, to be promoted — 
how ? By the establishment of u schools and the means of instruc- 
tion." These three things are equally desirable ; they are to be 
equally fostered, and by the same instrumentality. I care not what 
may be included in the words "the means of instruction." They 
undoubtedly mean all the places and all the ways in which and by 
which "religion, morality" and general knowledge are disseminated. 

They may, and doubtless do, include the churches. It only 
strengthens the view which I now present, to hold that religion was 
to be taught in the schools even as it was to be taught in the 
churches. But, it is said, there is limitation upon the Legislature, 
imposed by the words "not inconsistent with the rights of con- 
science." And that is true. Of the extent of that limitation I 
do not now care to speak, but shall do so directly. I desire now 
to call the especial attention of the Court to these words, with refer- 
ence to their bearing upon the construction of the preceding 
language. If religion was not to be taught in the schools at all, 
whose "conscience" was in danger? I know how sensitive some 



Argument of W. M. Ramsey. 29 

Minor et ah "v. Board of Education of Cincinnati et al. 

of these consciences are; but the most sensitive would scarcely be 
offended if there should be no religious teaching, and it would 
scarcely have occurred to the framers of the Constitution to pro- 
vide a safeguard for them, if none had been contemplated. Can it 
be supposed that the framers of the Constitution intended to com- 
mand the Legislature to establish schools, in which instruction 
should be given in "reading, writing and arithmetic," "not incon- 
sistent with the rights of conscience?" 

It will not be argued, I know, by the learned counsel for the 
defendants, that the latter part of the sentence destroys the mean- 
ing of the entire sentence — that while the opening part of it pro- 
vides for schools in which religion is to be taught, the concluding 
part contains a declaration which, in effect, precludes all religious 
teaching, and renders the entire provision nugatory. 

Manifestly, then, schools were to be established for the purpose of 
disseminating religious, as well as general knowledge and the princi- 
ples of morality, but in the teaching of religion regard was to be had 
to the rights of conscience; that is to say, sectarianism was to be 
avoided. 

Following the adoption of this Constitution, several acts were 
passed by the Legislature making provision for the distribution of 
the school fund arising from the Congressional grant of lands, but 
it was not until January 22, 1821, that the first law was passed 
providing for the establishment of a system of common sch6ols. 
It will be found on pages 11 70-8 of Chase's Statutes. This act 
was followed by a very large number of laws, enacted from time 
to time, all, or nearly all, of which v/ere repealed by the general 
law passed March 14, 1853, st ^ m fo rce - It is not necessary that 
I should enumerate these laws, or consider their provisions in de- 
tail, with reference to the aspect in which I now desire to present 
them. 

These laws do not prescribe the course of study to be pursued, 
the text books to be used, the mode of discipline, the qualification 
of teachers, the duration of the period of pupilage, or anything 
else relating to the practical administration of the system thus 
established. They provide for appropriate division of the territory 
of the various counties and townships into districts and sub-dis- 
tricts, for the election of directors, and the organization of the 



30 Superior Court of Cincinnati. 

Minor et al. r v. Board of Education of Cincinnati et al. 

board of directors, for suitable taxation for the support of the 
schools. These laws simply provide for "schools." They afford 
no more light as to the purpose to which they were to be devoted, 
or the manner in which that purpose was to be effected than would 
nave been done by the words, " It is hereby declared that common 
schools shall be established and maintained in Ohio." 

The various legislatures that have acted upon the subject have 
been content to allow the general declaration of the object of the 
schools contained in the Constitution to stand as the single and 
sufficient declaration of that object. And these remarks apply to 
the special law affecting the schools of. Cincinnati. 

Will it be said that this silence of the legislative enactments 
leaves the whole subject within the control of the various local 
boards of directors ? Undoubtedly they are invested with large 
discretionary power with respect to the management of the schools. 
But it is equally free from doubt that that discretion is subject to 
the general purpose for which the schools were established and con- 
trolled by it. There must be a limit to this discretion. It is 
readily found. Would it be claimed that the School Board could 
lawfully require teaching only in the higher branches of learning, 
to the exclusion of elementary instruction ? Could they give 
instruction only in a foreign tongue, to the exclusion of our Own ? 
As to discipline, how often it has been held that rules upon the sub- 
ject must be "reasonable." Could they teach positive infidelity or 
immorality? Certainly not 5 because these things would defeat, not 
the declared object of the schools, but the well understood object. 
And, in any of the cases here supposed, the power of a court of 
equity to interfere would scarcely be controverted. 

And, therefore, if the construction which I am now claiming 
for the Constitution and laws be the true one, the Board of Edu- 
cation possesses as little authority to proscribe the teaching of religion 
and morality as they have to require the positive teaching of immor- 
ality and irreligion. 

But I affirm with entire confidence, as a proposition of lav/, 
that had the Constitution been as silent as these laws as to the pur- 
pose for which schools were to be established ; had it simply 
declared that it should be the duty of the Legislature to establish 
schools, the construction would be precisely the same — that relig- 



Argument of W. M. Ramsey. 31 

M nor et al. -v. Board of Education of Cincinnati et al. 

ious instruction would be as clearly contemplated as it is now by 
the express language of that instrument. 

In that event, called upon to give a judicial definition of the 
term, the Court would examine the history of " schools " and 
ascertain what had been their character, what had been taught in 
them, and having thus ascertained what it was that had presented 
itself to the minds of the framers of the Constitution under that 
title would be amply prepared to declare their meaning. I need 
scarcely refer to authorities to maintain this proposition. 

It has been decided that, in the absence of any declaration in 
the Constitution as to the number of persons required to constitute 
a jury, a jury of twelve men was intended, because juries had 
been so composed prior to the date of that instrument, and because 
the term had a well known signification. 

Now I by no means intend to argue that the term " school " has 
such a technical legal signification as the term "jury" or the words 
"habeas corpus" I claim only that in the absence of express pro- 
visions upon the subject, the general features of the school will be 
determined by reference to the understanding and practice of man- 
kind at and before the date of the enactment. 

Viewed in this light, then, it must have been within the contem- 
plation of the framers of the Constitution that the teaching of relig- 
ion had been a leading object in every school establishment preced- 
ing our own, and the sole object of many. 

The schools of the Grecian philosophers were chiefly devoted to 
the dissemination of knowledge concerning the nature of the gods 
and the spiritual nature of man. The public teaching of Pytha- 
goras was but the expression of his " speculations concerning the 
harmony of the universe, of his profound conviction of man's 
immortal destiny, and the paramount import of his moral nature ; " 
for Pythagoras, during his sojourn among the Egyptians, had been 
told something of the true God, which he more than half believed ; 
and Aristotle, when he had instructed the Macedonian prince in 
ethics, rhetoric, and politics^ repaired to the lyceum to teach a phi- 
losophy to the Athenian youth in which theology bore the most 
conspicuous place. 

In the third century of the Christian era the Church turned its 
attention to the subject of the education of youth, and to this day 



/ 



21 Superior Court of Cincinnati. 

Minor et al r v. Board of Education of Cincinnati et al. 

in all the Catholic countries of Europe this interest is committed 
almost exclusively to its care. And in all the Protestant countries, 
and even in states and communities divided in religious sentiment 
as widely as Catholic and Protestant are divided, religious instruction 
is regarded as of the first importance, and is vigilantly maintained 
in every school system. Whether we regard the catechetical 
schools at Alexandria, the imperial schools at Rome, the itinerary 
schools of the monks, the later schools of the Jesuits, or those of 
Charlemagne, or the Benedictine convents ; in which for five long 
centuries nearly all that remained of literature and the arts was 
sacredly preserved, or the schools of modern Europe, we find 
religious teaching the predominating element in most of them, and 
in none of them deemed less important than instruction in the arts 
and sciences. "Religionibus et artibus sacrum " has been written 
over the portals of all of them. And I desire briefly to call the 
attention of the court to the character of the systems of education 
of the various states of Europe as they existed at a recent date. 
From a report made to the Ohio Legislature in 1839 upon "Ele- 
mentary Public Instruction in Germany," by Rev. Dr. Calvin E. 
Stowe, then Professor of Biblical Literature in Lane Seminary, I 
gather the following account of the primary schools of Germany, 
particularly of Prussia and Wurtemburg :" 

" The system embraces a course of eight years. In the first 
division, comprising two years, for children from six to eight years, 
is taught four branches, the first one being logical exercises or oral 
teaching in the exercise of the powers of observation and expres- 
sion, including religious instruction and the singing of hymns. 

" In the second division of the period of time, intended for chil- 
dren from eight to ten years, instruction is given in seven branches, 
the third one in the enumeration being 'religious instruction in 
select Bible narratives.' 

" In the third division, including children from ten to sixteen 
years old, is ' religious instruction in the connected Bible history.' 

" In the fourth division, including children of the same age, is 
given 'religious instruction on the religious observations of nature, 
the life and discourses of Jesus Christ, the history of the Christian 
religion in connection with the contemporary civil history, and the 
doctrines of Christianity.' " 



Argument of TV. M. Ramsey. 33 

Minor et al. ■v. Board of Education of Cincinnati et al. 

The learned author of this report gives a brief and interesting 
account of this religious instruction. 

In a report upon the same subject, made by Horace Mann to 
the Massachusetts Board of Education, he points out the methods 
by which, in the mixed schools, the pupils receive combined literary 
and separate religious instruction; the Protestant and Catholic chil- 
dren being separately instructed in the tenets of their respective 
churches. And Mr. Kay, in his work on "The Social Condition 
and Education of the People in England and Europe," speaks with 
enthusiastic admiration of the concessions made and forbearance 
exhibited by all religious sects and parties in all the German states, 
to the end that the harmony and success of the system should be 
secured. 

In Barnard's " National Education in Europe," page 92, in 
treating the subjects and methods of instruction in Prussia, it is 
stated that every complete elementary school in that country gives 
instruction in religion — morality — established on the positive truths 
of Christianity. 

In the public schools of Berlin instruction is given in " the 
Bible, the catechism, the positive truths of Christianity." 

In Saxony, under laws established in 1836, religious instruction 
is given, but the pupils are not required to take part in it. The 
certificate, however, granted at the end of the term of pupilage, is 
only granted if the child gives satisfactory evidence to a committee 
composed of clergymen and teachers that he has received a certain 
amount of religious instruction. (Page 266, Barnard.) 

The Austrian system, which is like that of Prussia, compul- 
sory, is "based on religion and governed and molded by the 
State/' (Page 324, Barnard.) 

In Switzerland no one is allowed to exercise the vocation of a 
teacher without a certificate from a clergyman of his own church 
that he is fitted both by character and education to conduct the 
religious education in the school for which he is designed. 

The system of France, formed on the Prussian model after 
its careful examination by Cousin in 1833, embraces moral and 
religious instruction. 

The system of Holland, established in 1801, contains the fol- 
lowing regulations : 



j4 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

"Sec. 22. The instruction shall be conducted in such a man- 
ner that the study of suitable and useful branches of knowledge 
shall be accompanied by an exercise of the intellectual powers, and 
in such a manner that the pupils shall be prepared for the practice 
of all social and Christian virtues. 

".Sec. 23. Measures shall be taken that the scholars be not left 
without instruction in the doctrinal creed of the religious commu- 
nity to which they belong, but that instruction shall not be exacted 
of the schoolmaster.' 

In Russia, it appears from a report made to the emperor in 
1851, that in that country "it is assumed that religious teaching 
constitutes the only solid foundation of all useful instruction." 

Of the Italian states, Portugal, and Spain, I need not speak. 
The Catholic Church still adheres to the view with which it 
began upon this subject. 

The view of the subject which has prevailed in England is 
well illustrated by a judicial opinion which I will now cite. 

In The Attorney General v. Cullum, I Young & Collyer, 
411, decided in 1842, soon after the attention of the people of 
England had been so powerfully directed to the subject of popular 
education by Lord Brougham, the Vice Chancellor said: "Courts 
of equity in this country will not sanction any system of education 
in which religion is not included." 

In the matter of The King's grammar school, in the borough of 
Warwick, reported in 1 Phillips, page 563, Lord Lyndhurst left the 
subject of religious instruction in the school to the master, being 
satisfied to do so when it appeared that he was required to be an 
undergraduate and in holy orders. 

It does not at all impair the validity of the argument which I 
seek to draw from these citations to say that they are the examples 
of states and countries in which there is a union between Church 
and State, because, 

First. In all these states and countries there are dissenters 
from the State religion, and the utmost care is taken to avoid 
injury to the just views of the different sects, and the injury is 
avoided by means of combined literary and separate religious 
instruction. But the pupil in a school is absolutely required to 
have some religious instruction from some person. 



Argument of IV. M. Ramsey. 35 

Minor et al. v. Board of Education of Cincinnati el al. 

Second. These examples are cited to show the understanding 
of enlightened Europe upon the subject of the office of "schools/' 
and they must be presumed to have been in the contemplation of 
the framers of our Constitution and laws upon the subject. And 
especially when considered in connection with the language of 
the Constitution, which clearly contemplates religious instruction, 
restricted only by the rights of conscience. 

I am not informed with sufficient accuracy to speak of the 
extent to which instruction of this character has been given in the 
common schools of the other states of the Union. The laws 
of the different states upon the subject are very similar to our 
own. 

So far as relates to those institutions in which the higher 
branches of learning are taught — colleges, academies, and semi- 
naries — with perhaps the single exception of the University of Vir- 
ginia, religious instruction is and has ever been regarded as of the 
first importance, and nearly all of these institutions are in the 
enjoyment of aid from the various states in which they are situated. 
In all of them Paley's and Alexander's Evidences of Christianity, 
Butler's Analogy, and works of a similar character, are regular 
text-books. Very early in the history of the colonies they laid the 
foundations of those great institutions that are now among the chief 
objects of the pride and glory of the nation, the colleges of Yale 
and Harvard. The propagation of the Christian religion was the 
chief end in view in the establishment of these institutions, as 
avowed by their individual promoters and in their grants of state 
authority. 

But the law-making power of the State of Ohio has spoken 
directly and distinctly upon this subject in at least three instances: 
On the gth day of January, A. d. 1802, the General Assembly 
passed an act for the establishment of the university at Athens, 
under the name of the " American Western 'University." The 
preamble to the act and the first section thereof are as follows : 



"Whereas, Institutions for the liberal education of youth 
are essential to the progress of arts and sciences, important to mor- 
ality, virtue, and religion ; friendly to the peace, order, and pros- 
perity of society," etc., " therefore, be it enacted, 



2 6 Superior Court of Cincinnati. 

Minor et a/, -v. Board of Education of Cincinnati et al. 

" Section i. That there shall be a university established in the 
town of Athens, in the ninth township of the fourteenth range of 
townships within the limits of the tract of land purchased by the 
'Ohio Company of Associates,' by the name and style of the 
' American Western University,' for the instruction of youth in 
all the various branches of the liberal arts and sciences, for the pro- 
motion of good education, virtue, religion, and morality, and for 
conferring all the degrees and literary honors granted in similar 
institutions." 

The twelfth section of the act provides that the rents and 
profits of the corporate property should be " appropriated to the 
endowments of the said university in such a manner as shall most 
effectually promote virtue, morality, piety, and the knowledge 
of s-uch of the languages and of the liberal arts and sciences as 
shall hereafter be directed from time to time by the corporation." 

The fourteenth section exempts the property of the university 
from taxation. 

•On the 1 8th day of February, 1804, the Legislature passed an 
act upon the same subject changing the name of the proposed uni- 
versity to that which it now bears. This act contains the same 
recitals in the preamble, and the first section is identical with that 
of the act of 1802. 

On the 9th day of February, a. d. 1809, the act for the estab- 
lishment of Miami University was passed. The first section of that 
act is follows : 

"Section I. That there shall be a university established and 
instituted in the manner hereinafter directed, within that part of the 
county known as John Cleves Symmes' purchase, which university 
shall be designated by the name and style of the Miami University, 
for the instruction of youth in all the various branches of the lib- 
eral arts and sciences, for the promotion of good education, virtue, 
religion and morality, and for conferring all the literary honors 
granted in similar institutions, and the benefits and advantages of 
the said university shall be open to all the citizens within this State." 

Here, then, is the public policy of Ohio. Here are the expres- 
sions of the understanding of the people of the State upon the subject 
now under consideration. It is to be observed that these are institu- 
tions for the education of youth ; that they are State institutions ; the 



Argument of W. M. Ramsey. 37 

Minor et al. -v. Board of Education of Cincinnati et al. 

land with which they were endowed was the gift of the Federal 
government, but vested in the State in trust, with discretionary 
power as to the manner in which it should be applied to the general 
purpose for which' it was designed, and they received the further 
support of the State in the exemption of their property from taxa- 
tion. • 

In these State institutions — in these " schools " for the 
"instruction of youth" — "religion," "virtue," "piety," "mor- 
ality," are to be carefully taught. These acts were passed when 
the Constitution was fresh in the minds of the people s one of them, 
indeed, a few months before its adoption. The men who made the 
Constitution made these laws, and they understood that these things 
could be taught consistently with " the rights of conscience." 

They stipulated by law that these universities should be 
equally open to all the citizens of Ohio, and vet required the teach- 
ing of " religion," "piety," and " morality," not dreaming that 
there was any incompatibility between the two provisions. 

The .power of the State to make the provision which was thus 
made for religious teaching in the universities was never questioned. 
The Federal government, by its acquiescence, signified its appro- 
val j the people of the State — and all were equally entitled to the 
benefits of the institutions — gave to these enactments their sanc- 
tion ; and it has never been whispered that, because religion has 
been made the basis of all instruction in them, the conscience of 
any one was offended, or that any person in the State was deprived 
of his right or interest in them. 

Let it not be argued that because the Legislature had pro- 
vided for religious teachings in the universities, and omitted to 
make such provision in relation' to the common schools, it is to be 
implied that none was intended to be given them. The uni- 
versity acts provided that the liberal arts and sciences should be 
taught in the universities, but the common school acts make no 
corresponding provision in relation to the common school. If 
the argument should be held good, it would prohibit, or excuse, 
the teaching of the alphabet or the multiplication table, at the same 
'time that it would prohibit, or excuse, the reading of the Bible. 
Had the University acts omitted to make any declaration of the 
purpose for which the universities were established, there would 
4 



38 . Superior Court of Cincinnati. 

Minor et. al -v. Board of Education of Cincinnati et al. 

still have been no doubt in the mind of any one as to that purpose. 
They would have been readily understood as directing the estab- 
lishment of institutions in which " religion and the arts " were to 
be taught. 

Nor let it be said that there is no analogy between the univer- 
sity and the common school in this respect, on the ground that 
religious subjects may properly engage the attention of the young 
men who attend the universities, but not that of the young minds 
receiving instruction in the common schools. These schools are 
to some but schools of preparation — to many more they are the 
only means of instiuction — but, if religion be at all desirable to 
any one at any time, it is important to both these classes to receive 
instruction in it here — in the time of early youth, when the mind 
is most open to the reception of faithful teaching — before the 
slumbering passions have been aroused — hate, revenge, unhallowed 
ambition — the promptings of evil appetites — here, where the prep- 
aration must be made, and while it may be made, for the great suc- 
ceeding struggle between inclination upon one hand and duty upon 
the other, a struggle in which none may engage with confidence, 
but they who are panoplied in "the whole armor of God." 

The courts of this State have not been called upon hitherto 
to give a definition of the meaning of the Legislature as expressed 
in the school laws. But the people gave them an interpretation, 
and for more than twenty years prior to the adoption of the pres- 
ent Constitution, acted upon it. They understood that religious 
instruction was a part of the system, and hence, as your Honors 
have been made aware by the petition, the daily sessions of the 
schools of this city have been opened by the reading of the Bible, 
and by "appropriate singing." 

In cases of private contract the Court will always construe 
the written instrument, where the meaning is not clear, as the par- 
ties have understood it, holding that to be good evidence of the 
intention. So, the construction which the people of a state place 
upon its laws, and upon which they act, will be regarded by the 
Court as of great significance, when called upon to solve a doubt 
upon the meaning of the laws, especially where the action appears 
to have been general and unquestioned. 

The subject occupied this attitude at the adoption of the pres- 



Argument of W. M. Ramsey. 39 

Minor ct al. -v. Board of Education of Cincinnati et al. 

ent Constitution, in 1851. A separate article of that instrument 
is devoted to the subject of education. The second section of 
article 6 is as follows : 

" Sec. 2. The General Assembly shall make such provisions, 
by taxation or otherwise, as, with the income arising from the 
school trust fund, will secure a thorough and efficient system of 
common schools throughout the State; but no religious or other 
sect or sects shall ever have any exclusive right to or control of 
any part of the school funds of this State." 

This is manifestly a guard against any division of the school 
fund for sectarian purposes. So far from being, as has been claimed, 
an evidence of a divorce between the schools and religion, it is an 
additional recognition of their intimate union. It is in furtherance 
of the design to exclude sectarianism from the schools. Why 
should such a provision be made if the schools are to be confined 
to secular teaching? If the seventh section of the Bill of Rights 
is efFectual to prohibit all religious teaching, this provision is super- 
fluous. If no religion is to be taught, surely the peculiar tenets of 
a sect can not be taught. 

In the presence of this provision I find additional evidence 
that the seventh section of the Bill of Rights does not affect the 
question under consideration, and that this is a clear recognition of 
the intimate and necessary union between religion and the schools. 
There can be no doubt^ that this is the true construction of this 
provision, when it is read in the light of the concluding sentence 
of the seventh section of the Bill of Rights, which is, in sub- 
stance, the same as the third section of the Bill of Rights in the 
Constitution of 1802. 

" Religion, morality and knowledge, however, being essential 
to good government, it shall be the duty of the General Assembly 
to pass suitable laws to protect every religious denomination in the 
peaceable enjoyment of its own mode of worship, and to encourage 
schools and the means of instruction." 

I have thus called your Honors' attention to these considera- 
tions : 

1. That the Constitution of the State, in force at the incep- 



4-0 Superior Court of Cincinnati. 

Minor et a!, -v. Board of Education of Cincinnati et al. 

tion, and during the full development of the common school sys- 
tem, required the establishment of schools in which " religion, mor- 
ality and knowledge" should be promoted. 

2. That the common school laws are silent as to the purpose 
for which they were established, necessitating a reference to the 
Constitution, and an inquiry into the general understanding of civi- 
lized and enlightened nations as to the functions which such 
schools perform — eliciting the clear response that religious instruc- 
tion is one of their chief objects. 

3. That the Legislature of the State, in a series of enact- 
ments upon the subject of education, declared the purpose to be 
the promotion of " piety," " religion," " morality," and tc knowl- 
edge," thus clearly indicating the policy of the State in that behalf. 

4. That the new Constitution contains a provision similar to 
the old one, with an additional provision against sectarianism, which 
is a clear recognition of the near connection between religion and 
the schools. 

It would scarcely be denied that these considerations would 
make good the proposition with which I began, to-wit : That re- 
ligious instruction is, in contemplation of law, an essential, element 
in our common school system of education, if it were not for the 
reliance which is placed upon that part of the seventh section of 
the Bill of Rights, which I have not read, and which is as follows : 

" All men have a natural and indefeasible right to worship 
Almighty God according to the dictates of their own conscience. 
No person shall be compelled to attend, erect or support any 
place of worship, or attend any form of worship, against his con- 
sent ; and no preference shall be given by law to any religious soci- 
ety ; nor shall any interference with the rights of conscience be 
permitted. No religious test shall be required as a qualification 
for office, nor shall any person be incompetent as a witness on 
account of his religious belief." 

It has been claimed, and will doubtless be argued here, that 
this clause renders any religious instruction in the schools, unlaw- 
ful, irrespective of any action of the School Board upon the sub- 
ject. Unless this position can be made good by the learned coun- 
sel for the defendants, it would seem that the restraining order in 
this case must be made perpetual. 



Argument of W. M. Ramsey. 41 

Minor ct al. -v. Board of Education of Cincinnati et al. 

It seems to me that nothing connected with the public discus- 
sion of this general subject is so striking as the total failure upon 
the part of so many really intelligent persons to apprehend the his- 
tory, the purpose, the spirit, or the scope of this provision, and its 
counterpart in the Federal Constitution. It is really supposed by 
many persons to be the declaration of the utter indifference of the 
State to all religion, and as such deplored by them. The infidel 
points to it with exultation as the charter of his liberty to scoff and 
sneer at all sacred things. The procurement of the recognition of 
the principle, if not its authorship, is attributed by many to 
Thomas Jefferson, a jnan who deliberately wrote that he did not 
allow himself to have religious opinions, because he could not cer- 
tainly know that they were correct. Your Honors well know how 
utterly mistaken are these views. 

Your Honors well know that the principle involved in this 
section was firmly established in the government of this country 
an hundred years before Thomas Jefferson was born ; that it was 
established and proclaimed by men who had been persecuted, not 
for infidelity, but for religious opinions, in the just sense of that 
expression. They intended to secure freedom of conscience, 
which they never defined in any other way than the right to " wor- 
ship" God according to the dictates of the conscience. I do not 
mean to deny that the principle is broad enough to include the 
right to omit all worship, or even to disbelieve in the existence 
of God, but it was so established because they were wise enough 
to know that no man could be legislated into ' the enjoyment of 
religious opinions, or a devout spirit. The very essence of the En- 
glish Reformation, the very essence of Puritanism, no matter how 
much Puritanism may now be misrepresented or misunderstood, 
was the utter denial of the authority of the political government 
over matters of religious faith or worship. This was the teaching 
of Martin Luther. This principle never had a more powerful 
advocate than it found in the pen of John Milton. 

Was William Penn indifferent to all religion, or without 
religious opinions ? No. Yet the first care of William Penn was 
to establish this principle in the laws of Pennsylvania. The most 
convenient account of this is found in the case of Updegrapk v. 
The Commonwealth of Pennsylvania, 11 Serg. & Rawle, 394. 



42 Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et al. 

The decision recites a law promulgated by William Perm, as fol- 
lows : 

" Almighty God, being only Lord of conscience, Father of 
lights and spirits, and the Author as well as object of all divine 
knowledge, faith, and worship, who only can enlighten the minds 
and persuade and convince the understandings of people in due 
reverence to his sovereignty over the souls of mankind. It is 
enacted by the authority aforesad, that no person at any time here- 
after living in this province, who shall confess and acknowledge 
one Almighty God to be the creator, upholder and ruler of the 
world, and that professes him or herself obliged in conscience to 
live peaceably and justly under the civil government, shall in any 
wise be molested or prejudiced for his or her conscientious persua- 
sion or practice, nor shall he or she at any time be compelled to 
frequent or maintain any religious worship, plan or ministry, what- 
ever, contrary to his or her mind, but shall freely and fully enjoy 
his or her Christian liberty in that respect, without any interruption 
or reflection ; and if any person shall abuse or deride any other for 
his or her different persuasion and practice in a matter of religion, 
such shall be looked upon as a disturber of the peace, and be pun- 
ished accordingly." 

And to the end that looseness, irreligion and Atheism may 
not creep in under pretense of conscience, it provides for the observ- 
ance of the Lord's day, punishes profane cursing and swearing, 
and further enacts, for the better preventing of corrupt commu- 
nications, that 

" Whoever shall speak loosely thereof and profanely of 
Almighty God, Christ Jesus, the Holy Spirit, or Scriptures of 
Truth, and is thereof legally convicted, shall forfeit and pay five 
pounds, and be imprisoned for five days in the house of correction." 

Judge Duncan, commenting on this enactment, says : 

"Thus this wise Legislature framed this great body of laws 
for a Christian country and Christian people, Infidelity was then 
rare, and no infidels were among the first colonists." 

And to this day Christianity is held to be a part of the com- 
mon law of Pennsylvania, with liberty of conscience to all. 

In the Constitution of the State of Massachusetts, in which 



Argument of W. M. Ramsey. 43 

Minor et a!, -v. Board of Education of Cincinnati et al. 



the Protestant religion is expressly declared to be the subject of 
the care and support of the State, this liberty of conscience is fully 
secured. 

"Art. 2. It is the right as well as the duty of all men, in 
society, publicly, or at stated seasons, to worship the Supreme Being, 
the o-reat Creator and Preserver of the universe. And no subject 
shall be hurt, molested or restrained in his person, liberty, or 
estate, for worshiping God in the manner and season most agree- 
able to the dictates of his own conscience, or for his religious pro- 
fession or sentiments ; provided, he doth not disturb the public 
peace, or obstruct others in their worship. 

"Art. 3. As the happiness of a people and the good order and 
preservation of civil government essentially depend upon piety, 
religion and morality ; and as these can not be generally diffused 
through a community but by the institution of the public worship 
of God and of public instructions in piety, religion and morality ; 
therefore, to promote their happiness and to secure the good order 
and preservation of their government, the people of this Common- 
wealth have a right to invest their Legislature with power to au- 
thorize and require, and the Legislature shall, from time to time, 
authorize and require the several towns, parishes, precincts, and 
other bodies politic, or religious societies, to make suitable pro- 
vision, at their own expense, for the institution of the public wor- 
ship of God and for the support and maintenance of public Pro- 
testant teachers of piety, religion and morality, in all cases where 
such provision shall not be made voluntarily." 

The Constitution of Vermont is the most happy in the form 
in which this principle is expressed, to-wit : 

"That all men have a natural and inalienable right to worship 
Almighty God according to the dictates of their own consciences 
and understandings, as in their opinion, shall be regulated by the 
Word of God; and that no man ought to or of right can be com- 
pelled to attend any religious worship, or maintain any minister 
contrary to the dictates of his conscience ; nor can any man be 
justly deprived or abridged of any civil right as a citizen on account 
of his religious sentiments or peculiar mode of religious worship ; 
and that no authority can or ought to be invested in or assumed by 
any power whatever that shall in any case interfere with or any 
manner control the rights of conscience in the free exercise of 
religious worship. Nevertheless, every sect or denomination of 
Christians ought to observe the Sabbath, or Lord's Day, and keep 



44 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

up some sort of religious worship, which to them shall seem most 
agreeable to the revealed will of God." 

Notwithstanding the differences in the form of expression be- 
tween the various constitutions, it is apparent that they intend the 
same thing — protection to the various forms of religious belief, and 
thereby the encouragement and promotion of religion. 

The Constitution of New Hampshire contains in the fifth sec- 
tion the amplest provision securing the rights of conscience, and 
yet in the- sixth section the Legislature is authorized to empower 
the establishment of churches and schools for the promotion of 
"morality and piety, rightly grounded on evangelical principles." 

"Art. 5. Every individual has a natural and inalienable right to 
worship God according to the dictates of his own conscience and 
reason, and no subject shall be bereft, molested or restrained in his 
person, libertyor estate for worshiping God in the manner and sea- 
son most agreeable to the dictates of his own conscience ; or for 
his religious profession, sentiments or persuasion : provided he doth 
not disturb the public peace or disturb others in their religious 
worship. 

"As morality and piety rightly grounded on evangelical princi- 
ples may give the best and greatest security to government, and 
Will lay in the hearts of men the strongest obligations to due sub- 
jection,' and as the knowledge of these is most likely to be propa- 
gated through a society by the institution of the public worship of 
the Deity and of public instruction in morality and religion, there- 
fore to promote those important purposes the people of this State 
have a right to empower, and do hereby fully empower, the Legis- 
lature to authorize from time to time the several towns, parishes, 
bodies corporate or religious societies within this State to make ade- 
quate provision at their own expense for the support and mainten- 
ance of public Protestant teachers- of piety, religion and morality." 

I do not care to make a further reference to the various state 
constitutions. They are uniform in substance, though various in 
form, and they are well illustrated by the commentary of Judge 
Story upon the similar provision of the Constitution of the United 
States : 

"The real object of the amendment was not to countenance, 
much less to advance Mohammedanism, or Judaism, or Infidelity, 



Argument of IV. M. Ramsey. 45 

Minor et al. ■v. Board of Education of Cincinnati et al. 

by prostrating Christianity, but to exclude all rivalry among Chris- 
tian sects, and to prevent any national ecclesiastical establishment, 
which should give to a hierarchy the exclusive patronage of the 
National government. It thus cut off the means of religious per- 
secution (the vice and pest of former ages), and of the subversion 
of the rights of conscience in matters of religion, which had been 
trampled upon almost from the days of the apostles to the present 
age." 

In Rawle on the Constitution, pages 116 and 117, the same 
view is presented concerning these provisions ; to-wit: That they 
are for the protection of "religious opinions and worship." 

"The first amendment prohibits Congress from passing any 
law respecting an establishment of religion, or preventing the free 
exercise of it. 

"■ It would be difficult to conceive on what possible construc- 
tion of the Constitution such a power could ever be claimed by 
Congress. The time has long passed by when enlightened men in 
this country entertained the opinion that the ^general welfare' of a 
nation could be promoted by religious intolerance, and under no 
other clause could a pretense for it be found. Individual states 
whose legislatures are not restrained by their own constitutions, 
have been occasionally found to make some distinctions, but when 
we advert to those parts of the Constitution of the United States 
which so strongly enforce the equality of all our citizens, we may 
reasonably doubt whether the denial of the smallest civic right 
under this pretense can be reconciled to it. In most of the gov- 
ernments of Europe, some one religious system enjoys a preference, 
enforced with more or less severity, according to circumstances. 
Opinions and modes of worship differing from those which form 
the established religion, are sometimes expressly forbidden, some- 
times punished, and in the mildest cases only tolerated, without pat- 
ronage or encouragement. Thus a human government interposes 
between the Creator and His creature, intercepts the devotion of 
the latter, or condescends to permit it only under political regula- 
tions. From injustice so gross and impiety so manifest, multitudes 
sought an asylum in America, and hence she ought to be the hos- 
pitable and benign receiver of every variety of religious opinion." 

Chancellor Kent, commenting upon the subject of these pro- 
visions, in vol. 1, p. 657, says : 

"The free exercise and enjoyment of religious profession and 
worship may be considered as one of the absolute rights of indi- 



4-6 Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et al. 

viduals, recognized in our American constitutions, and secured to 
them by law." 

No, these provisions are not the evidences of indifference to 
religion. They are not the charters of Infidelity or the work of 
infidel hands. They are the monuments of Christian philanthropy 
— of Christian statesmanship ; they are the offspring of the free 
spirit of Christianity; they are designed for the promotion of true 
religion, the very essence of which is the accountability of man to 
God, and to God alone, for his religious faith and practice. 

The State of Ohio is not an infidel State, nor indifferent upon 
the subject of religion. And in this connection, I desire to call 
your Honors' attention, hastily, to some further legislation bearing 
upon that subject : 

The fifth section of the act relating to apprenticeship, volume 
I, Swan & C, page 77, provides that the master or mistress shall 
give the apprentice certain instruction, and at the end of his or her 
service, shall furnish the minor with at least two suits of wearing 
apparel, and "a new Bible." The minor is thus to go forth into 
the world clothed in suitable wearing apparel, and " clothed and in 
his right mind" — subject, I dare say, to "the rights of conscience." 
I commend this law to the careful attention of a distinguished 
divine, who is also a member of the School Board, and who, in the 
transport of the joy that he experienced when the end of religious 
instruction in the schools was supposed to have been reached, 
declared that the work then and thus consummated was but the 
beginning of a series of pious labors looking to the more complete 
divorcement of Church and State. 

If the Bible ought not to be read in the schools, it ought not 
to be given to the homeless child going out into the world with 
naught else, without the presence of some judicious person to point 
out to him, at least, the immorality of the fifth chapter of Mat- 
thew. 

On page 1440, Swan & C, will be found the law exempting 
from taxation " all public school-houses and houses used exclusively 
for public worship, the books and furniture therein, and the grounds 
attached to such buildings necessary for the proper occupancy, use, 
and enjoyment of the same." 



Argument of W. M. Ramsey. 47 

Minor et al. i/. Board of Education of Cincinnati ct al. 

"This exemption is accorded," says Judge Caldwell, Cincin- 
nati College v. The State, 19 Ohio, no, "because the purposes to 
which said property is devoted are beneficial to the community." 

On page 447, Swan & C, will be found an act which his 
Honor, Judge Thurman, in Bloom v. Richards, calls "a mere civil 
regulation," but which, if it be so, is in very bad company, for it 
is classed among the "crimes," and there are "crimes" before it,' 
and "crimes" just behind it. It was passed February 17, 1831, 
and is really described as "an act for the prevention of certain im- 
moral practices." 

It provides, in the first section, that "if any person shall be 
found on the first day of the week, commonly called Sunday, 
sporting, fishing, shooting, or at common labor," he or she shall be 
punished. If this act merely provides a "day of rest," and does 
not regard the sacred character of the day, it seems to me that it 
was injudicious to carry it so far. A quiet seat by the bank of a 
pleasant stream, with a fishing-rod, would be an admirable disposi- 
tion of one's self for a day of rest and reinvigoration after six days 
of toil ! 

The third section of the act provides that "if any person or 
persons shall, at any time, interrupt or molest any religious society, 
or member thereof, or any meeting for the purpose of worship, or 
performing any duties enjoined on, or appertaining to them as 
members of such society," shall be punished. 

The fourth section is as follows : 

" That if any person of the age of fourteen years and upward, 
shall purposely curse or damn, or profanely swear by the name of 
God, Jesus Christ, or the Holy Ghost," he shall be punished. 

On page 911, Swan & C, will be found the Penitentiary act. 

Section 5 requires the employment of a chaplain to the peni- 
tentiary, who shall hold his office one year, and receive an annual 
salary; that he "shall be a minister of the gospel in good standing 
in someone of the denominations of this State," and that he "shall 
devote his entire time and ability to the welfare of the convicts." 

In addition to this provision, the thirty-fifth section of the act 
of 1835 requires the warden to "furnish each convict with a Bible, 



48 Superior Court of Cincinnati. 



Minor ct al. v. Board of Education of Cincinnati et al. 



and shall permit, as often as he may think proper, regular ministers 
of the gospel to preach to such convicts." 

The statute upon the subject of "marriages," passed in 1824, 
Swan& C, page 855, is very significant. 

• The second section declares that "it shall be lawful for any 
ordained minister of any religious society or congregation, within 
this State^ who- has or may hereafter obtain a license for that pur- 
pose," in the manner prescribedby the act, to solemnize marriages. 

This is a very broad provision apparently. Standing alone, it 
would open a wide door to those who should desire to make a 
broad claim' as to what constituted a "religious ^society." But it 
will be observed that the "minister" must obtain a license. 

The third section points out the mode of obtaining a license, 
and describes with more accuracy the class of persons who may ob- 
tain it. Any " minister of the gospel," upon producing satisfactory 
evidence of his regular ordination as such, may obtain licensend, a 
none other. 

Thus the Court is called upon to consider the express declara- 
tion of the Constitution of the value of religion to the individual, 
to society, and the state, with a large body of legislation looking 
to its promotion. And thus we are led to the question, "What 
religion is contemplated by the Constitution and laws ? " and, in 
the same connection, " What religious instruction shall be given in 
the schools ? " 

The answer to both questions is simple and obvious : The religion 
of the Bible is the only religion knoivn to the Constitution and laws of 
the State of Ohio, and instruction in its elementary truths should be 
given in the schools. 

What "Bible" is referred to in the Apprentice act? Do 
your Honors doubt that it is the Old Testament and New, treated 
as one book? What "gospel" is meant in the Marriage and Peni- 
tentiary acts ? Have your Honors any question upon that subject? 
Of what "welfare" is the chaplain to be mindful? The spiritual 
" welfare " of the inmates, of course. Do the Blasphemy acts 
refer to any of the gods of the ancients? Would the act exempt- 
ing from taxation property used for "public worship" be held to 
embrace a place used for the worship of pagan deities ? No 
espectable lawyer would make such a claim. 



Argument of TV. M. Ramsey. 40 

Minor et al. -v. Board of Education of Cincinnati et a!. 

The poiver of the State to enact these laws, and put them in 
force, has never been questioned. And it will not avail the defend- 
ants to argue that these are mere regulations looking to the pre- 
servation of the public peace and welfare, as has been decided with 
reference to the Sunday law. That is precisely the basis upon which the 
common school system itself rests. It is a political maxim that the wel- 
fare of a republic is dependent upon the virtue and intelligence of its 
citizens. It is upon this ground that the State assumes the right to 
educate its youth. It is in recognition of its supreme importance, its 
overwhelming necessity. Nothing but this necessity could justify 
for one moment the levy of a tax for educational purposes. Viewed 
in any other light, the State has no more right to assess such a tax 
than it would have to provide for food and raiment for all the children 
of the State — it would simply be an agrarian law. The high and 
responsible duties of American citizenship require not merely intel- 
ligence in the person performing them, but virtue and intelligence 
— intelligence, that he may know the right; virtue, that he may do 
it. The same qualification is required for the performance of his 
various social duties, and these are equally within the cognizance of 
the State — if, indeed, there be any line of distinction between public 
and private obligations. Intelligence, without virtue, is a positive 
evil. It simply increases the power to do evil. It is the recogni- 
tion of this truth that has made "religion and the arts" inseparable 
in the estimation of all faithful teachers and of all wise statesmen. 
The right of the State to give secular instruction can not be 
admitted, and its right to give religious instruction denied, upon 
principle. They must stand or fall together. The State asserts the 
right to " educate" the youth of the State, and the right is con- 
ceded. 

Education is defined by Horace Mann in these words: 

"All intelligent thinkers upon the subject now utterly discard 
and repudiate the idea that reading and writing, with a knowledge of 
accounts, constitute education. The lowest claim which any intel- 
ligent man now prefers in its behalf is, that its domain extends 
over the threefold nature of man ; over his body, training it by the 
systematic and intelligent observance of those benign laws which 
secure health, impart strength and prolong life ; over his intellect, 
invigorating the mind, replenishing it with knowledge, and cultivating 



50 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

all those tastes which are allied to virtue; and over his moral and 
religious susceptibilities also, dethroning selfishness, enthroning con- 
science, leading the affections outwardly in good will toward man, 
and upward in gratitude and reverence to God." 

This is the view of the subject which prevailed in the consti- 
tutional conventions of 1802 and 1851. This definition, or one 
substantially the same, would have been given by those bodies, had 
they given any. It is the definition that was present to the minds 
of the framers of the university acts and the common school laws. 
It is the definition that would be given by the people of Ohio. I 
put the question to the Court, and it touches the very heart of this 
case : Is it possible to educate youth in schools where these resolutions are 
enforced? I unhesitatingly declare that it is impossible! 

In this connection, I call the attention of the Court to the 
resolutions of the School Board, that their full scope and effect may 
be observed : 

" Resolved, That religious instruction and the reading of re- 
ligious books, including the Holy Bible, are prohibited in the com- 
mon schools of Cincinnati, it being the true object and intent of 
this rule to allow the children of the parents of all sects and opin- 
ions in matters of faith and worship, to enjoy alike the benefit of 
the common school fund. 

" Resolved^ That so much of the regulations on the course of 
study and text-books in the intermediate and district schools (page 
213, annual report), as reads as follows : l The opening exercises in 
every department shall commence by reading a portion of the Bible 
by or under the direction of the teacher, and appropriate singing by 
the pupils,' be repealed." 

Here is an absolute, positive prohibition of all " religious 
instruction," and of the " reading of religious books," " including 
the Holy Bible." It requires some effort of the mental faculties to 
enable one to fully grasp the scope of this enactment. You must 
consider the state and condition of those most directly affected by 
it — the nature and object of schools, as hitherto universally agreed 
upon — the object of education, as always understood — the nature 
of religion. 

These resolutions forbid all religious instruction, direct or 
indirect. They forbid all incidental teaching upon the subject. 



Argument of, W. M. Ramsey. 51 

Minor el al. v. Board of Education of Cincinnati et al. 

The teacher is limited to " facts and figures." Talk of the practi- 
cal difficulty of giving religious instruction without giving offense ! 
That is possible^ even if difficult. 

But, with a literature such as ours, religion interwoven with 
every fibre of it, the great theme of its best examples — dealing with 
human souls, conscious of their immortality — God help the teacher 
upon whom the task is imposed of carrying out these resolutions. 
That is simply impossible. 

The "religion" to which the Constitution refers is, as before 
remarked, the religion of the Holy Bible. A familiar rule of inter- 
pretation would lead to that conclusion, even in the absence of the 
express declarations in the various statutes to which I have referred. 
The history of the country, of the State, the most prominent facts 
in the social life of the people, would conclusively establish it. 
Now, to teach "religion," even -from the Bible, does not neces- 
sarily require the admission of the authenticity of every part of the 
Bible according to the King James, or any other version ; nor does 
it involve the necessity of putting any construction upon such por- 
tions of it as may be the subject of differences of opinion between 
the various sects or denominations of religious bodies in this State. 
The God of this Bible is the God of the Christian — be he Catho- 
lic or Protestant — of the Unitarian — of the Jew ! The general 
truths of the religion of this Bible are admitted by all who recog- 
nize the existence and authority of Almighty God.. The term 
" religion,"- used in the 7th section of the Bill of Rights, refers to 
the relation between man and the Almighty God, who is also re- 
ferred to in the same section. The legislature can not prohibit the 
exercise of that religion. But the legislature could prohibit the 
worship of " stocks and stones." The legislature may, and ought 
to, should the necessity arise, prohibit the erection and maintenance 
of pagan temples. 

The religion of our Constitution is thus defined : 

" Religion — Virtue, as founded upon reverence of God, and 
expectation of future rewards and punishments." — Dr. 'Johnson. 

"Religion, or virtue, in a large sense, includes duty to God 
and our neighbor ; but, in a proper sense, virtue signifies duty 
toward men and religion duty to God." — Dr. Watts. 



52 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

" Directed against God it is a breach of religion j if as to men 
it is an offense against morality." — Dr. South. 

u An acknowledgment of , our bond (a religando) or obligation, 
as created beings, to God, our Creator ; a consequent return of 
duty and obedience ; godliness, holiness, piety toward God ; rever- 
ence toward Him and to things sacred or consecrated to Him ; a 
strict and conscientious discharge or observance of our duties or 
obligations to each other as fellow creatures, or creatures of the 
same God." — Richardson s Dictionary. 

" An acknowledgment of God as our Creator, with a feeling 
of reverence and love, and consequent duty and obedience to Him; 
duty to God and His creatures ; practical piety, godliness, devo- 
tion, devoutness, holiness." — Worcester. 

It does not matter which one of these definitions is most 
accurate. They may all stand. Religion, according to all of 
them, is the theme of the Bible. Religion,, according to these de- 
finitions — not theology, not dogmas, not creeds — is to be taught in 
the schools ; and it is to be taught to the end that the pupils may 
become intelligent and virtuous citizens, competent to discern the 
path of duty in all the relations of life, and strong in the resolution 
to walk in it ! 

" It is difficult to avoid forming a false conclusion," says Abbe 
de Mably, in the letters addressed to John Adams concerning the 
government and laws of the United States, "respecting the rela- 
tions of religion to our God, because they are enveloped by a mul- 
titude of mysteries ; but the relations of religion to society are ascer- 
tained beyond the possibility of dispute. Who can entertain a 
doubt whether God hath intended to unite all mankind by the ties 
of morality and virtue ; ties whereon is founded the welfare of each 
citizen and of society." 

Cousin, in recommending to his countrymen the Prussian 
system of popular instruction, had expressed himself with the great- 
est enthusiasm with reference to the religious teaching which is so 
prominent a part of that system. Afterward, in a letter to a friend 
upon the subject, he said that this would probably occasion some 
surprise in France, where it was well known that he was anything 
but a devout believer ; but that, whatever might be his individual 
opinions, he recognized the inestimable blessings that religion con- 
ferred upon individuals, society and the state. 



Argument of W. M. Ramsey. 53 

Minor et al. v. Board of Education of Cincinnati et al. 

I am not required to indicate the precise extent to which re- 
ligious teaching in the schools should be carried. These resolutions 
forbid all teaching. But there could not be any and be less than 
has been hitherto afforded. The reading of the Bible and the in- 
corporation of extracts from it, and from religious writings into the 
books used in giving lessons, is religious instruction. I grant the 
justice of the claim that it is but little. Unaccompanied by suit- 
able exposition, and unaccompanied by the commendation of the 
teacher, the pupil, doubtless, fails to receive the complete and last- 
ing impression that he otherwise would receive. I thank God that 
it is no fault of mine that it is thus limited. 

But the pupil is at least advised that the Bible exists, and he 
will hardly fail to receive the impression that it deals with the 
great problems of his existence. He will doubtless comprehend 
that it teaches that he is an immortal being ; that there is a Supreme 
Being to whom he is accountable. He will doubtless learn valua- 
ble moral truths which will not only be conducive to his spiritual 
welfare, but will qualify him for the various duties of society and 
citizenship. Above all, the spirit of inquiry will be aroused. 

What offense against "conscience" is here? The Jew be- 
lieves the existence and authority of God. He believes in the 
immortality of the human soul. The Catholic makes no question 
concerning these things. But, say the defendants, there are per- 
sons in this city who can only recognize the Bible when printed in 
the Hebrew language; and there are others who do not quite like 
King James' version, but who are well satisfied with another. 

To all of this, 1 answer : " De minimis non curat lex." I yield 
to no man in respect for the rights of conscience. If there is a 
spark of bigotry or intolerance in my nature I am wholly uncon- 
scious of its presence. But even conscience may become too 
tender. It may become so delicate in its sensibilities and manifesta- 
tions that it will elude the grasp of even the most liberal Bill of 
Rights, and place itself beyond the pale of its protection ! Nay, 
its possessor may become so vigilant and so persistent in the asser- 
tion of his own right that he will forget the rights of others. 

The right of conscience, sacred as it is, must receive a sensi- 
ble, practical construction, such as is consistent with a state of 
5 



54 Superior Court of Cincinnati. 

Minor et al <v. Board of Education of Cincinnati et al. 

human society, and the existence of human government, preserv- 
ing the general welfare by the enforcement of general laws. 

If there are persons in this country who do not recognize the 
Bible, when printed in the vernacular of the country, while 
such persons may be entitled to the jury trial, and the habeas corpus ', 
and all the safeguards that the laws throw around the citizens of 
this country — and may be excellent citizens withal — yet I appre- 
hend that the laws of this country will hardly concern themselves 
with this question of taste. The State of Ohio will continue to 
give the poor apprentice boy a Bible — the James version — printed 
in the language spoken in this country. 

But the action of the Jewish people of this city, in dissolving 
their own schools, and placing their youth in the public schools 
when the rule requiring the Bible to be daily read was in full 
force, speaks louder upon this subject than the words of any who 
profess to speak in their name. 

No, the Israelites did not invoke this action. It is not even 
alleged in the answer that they did. If I believed that they had 
done so, I would, in the kindliest spirit, remind them that there 
are countries in the world with laws in force to this day, limiting 
the length of the period during which one of their race may re- 
main within their borders, and making that period brief. I would 
ask them to rejoice with me that such discrimination and oppres- 
sion can have no place in this land. I would point them to their 
elegant warehouses, to their palatial homes, their costly and mag- 
nificent temples, to the positions of honor and trust to which their 
chief members are frequently called, and I would ask them if, after 
all, there was not religious as well as civil liberty in this, country. 

So with reference to the difference between the version of 
the Scriptures read in the schools, and any other version. It is a 
refinement of which the law will not take notice. Especially when 
it is considered that there is no sectarian or doctrinal teaching in 
the schools, and no attempt to give a construction to that which is 
read. 

I cannot believe that this question of "version " is regarded 
as vital by those who uphold the action of the School Board. I 
am assured that a large majority of the names appended to the 



Argument of TV. M. Ramsey. $c 

Minor et al. -v. Board of Education of Cincinnati et al. 

petitions addressed to the Board, in favor of the result which was 
reached, were signed with the cross, or " X," which usually indi- 
cates an indifference in literary matters, and whieh certainly would 
not suggest the presence of the power to pass judgment upon the 
merits of respective translations. 

I call upon your Honors to witness that I do not rely upon 
the rule of the School Board, giving to the parents of each child 
in the schools, the right to determine what version the child shall 
read. If there were otherwise a valid ground of complaint, this 
rule would meet it> but I must be candid with myself, and I can 
not recognize any just, or reasonable, or lawful ground of com- 
plaint, and do not believe that any complaint has been sincerely 
made. 

Infidelity always fights under a mask. David Hume left some 
infidel manuscripts, with directions that they should be printed and 
published after his death. " He loaded a blunderbuss," said Dr. 
Johnson, " directed it against Christianity, and sneaked into the 
grave, leaving another to fire it off." So it is here. On behalf of 
the Catholic Church, I utterly deny that it wants a school system 
without religion. It would be false to the traditions of sixteen 
centuries if it were so. To show that it is a reflection upon that 
Church, utterly unwarranted, I quote the language of the Archbishop 
' of Cincinnati, in a communication to [a committee of the School 
Board, having this subject in charge, the -result of whose labors 
was the bringing forward of these resolutions. 

"The entire government of public schools in which Catholic 
youth are educated can not be given over to the civil power. 

" We, as Catholics, can not approve of that system of educa- 
tion for youth which is apart from instruction in the Catholic faith 
and the teaching -of the Church." 

In view of that parting declaration upon the part of the Arch- 
bishop, it requires a considerable degree of hardihood to place any 
of the responsibility for these resolutions upon the Catholic peo- 
ple of this city. 

Just what the Catholic people do want to do with the schools 
it is unnecessary to consider here. It is sufficient to show that 



56 Superior Court of Cincinnati. 

Minors? al. -v. Board of Education of Cincinnati et al. 

they do not want to send their children to any school where no 
religious instruction is given. 

But, says the answer of the defendants, there are many per- 
sons in this city who deny the divine authority of the Scriptures, 
and they ask to be protected. 

I have no embarrassment with this question. The law will 
not compel the infidel to believe — it will not compel him to sup- 
port, or erect, or attend, any place of worship, or to maintain any 
form of worship. Thus far, and no further, will his rights of 
conscience be respected. For him, the Bill of Rights will be fully 
and fairly construed. He may teach infidelity, if he can find pu- 
pils, but shall he forbid the State to teach religion ? He may have 
a system of morals derived from Epictetus or Seneca, and he may 
practice it, and teach it. But shall he deny the right to the State, 
representing the body of society, to prefer the lessons of the Bible, 
as the best means of raising up wise and good citizens ? He may 
denounce the Bible, but the law of the State will yet give a Bible 
to the poor apprentice boy. The Constitution will yet require the 
promotion of " religion, morality, and knowledge," by the use of 
" schools and other means of instruction;" the law will yet enforce 
outward respect to religion, and the keeping of the Sabbath, and 
he can not stand in the way of these things. Whatever he may 
think upon the subject, the State thinks that " religion " is "essen- 
tial to good government and human happiness," and has formed its 
policy upon that conviction ! There are persons who think that 
legal restrictions upon rates of interest are wrong, yet have we the 
usury laws ? There are persons who think that laws restraining 
the sale of intoxicating liquors are in excess of the just power of 
government, yet the liquor laws are upon the statute-book ; there 
are many persons who dispute the justice of the right of eminent 
domain, holding ft to be an unwarranted invasion of the sacred 
right of property, and 'yet even a cherished homestead must be sur- 
rendered upon the demand of a railroad or a turnpike company. 
Mere difference of opinion among the people, does not alter the 
policy of the State. That policy is fixed by law, in accordance 
with prevailing sentiment. 

There are, doubtless, persons who do not think that " religion is 



Argument of W.M. Ramsey. 57 

Minor et al. -v. Board of Education of Cincinnati et al. 

essential to good government," but the State, giving authoritative 
utterance to the sentiment of its people, declares that it is, and will 
act upon that assumption, and if, perchance, while the laws of the 
State are being administered — while the institutions of the State are 
performing their several appropriate functions — even the child of 
the unbeliever should receive the impression that these laws and 
institutions are all founded upon religion, and that they are rightly 
founded, it would be simply the result of his presence in a society 
of which religion is the chief bond, and a Stace which is but the 
expression of the spirit of that society. 

No man appeals to sympathy more strongly than the honest, 
earnest, thoughtful doubter. Such an one, in the person of 
Thomas, appealed to the Savior of men, and did not appeal in vain \ 
but it seems to me that if I believed the Bible to be a fable and 
God a myth, I would not seek to disturb my fellow-men in their 
delusion, and I can not refrain from saying that the common 
schools of this country owe their existence to this Bible — that 
they were organized and are principally maintained by men who 
adhere to its teachings. Carry these resolutions into effect, and 
their interest in them and their duty toward them ceases. 

These resolutions forbid all religious instruction, as I before 
remarked. They are, in substance, a repudiation, not only of 
Christianity, but of all religion, in the broadest sense of which the 
term is susceptible. They clearly constitute such a case as was 
supposed by the Court in pronouncing the opinion in the Girard 
will case, but from which that case was distinguished. I desire 
to adopt and to submit to the Court as part of my argument every 
word of the great argument of Mr. Webster in that case — an argu- 
ment that was not answered or denied by the Court, so far as its 
conclusions were concerned. The holding of the Court that 
Christianity might be taught in the orphans' college by pious lay- 
men, avoided his conclusion' without controverting his premises. 

These resolutions carried into effect signalize the complete 
surrender of the modern conception of education. The intellec- 
tual and moral faculties of man are so intimately blended that they 
can not be separately cultivated and developed. A being endowed 
with cultivated intellect without enlightened moral faculties would 
be a monster. 



5.8 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

Upon this subject, I beg to quote the language of a profound 
thinker, an eminent scholar, and a devoted teacher, Dr. Thomas 

Arnold : 

"Physical science alone can never make a man educated; 
even the formal sciences, invaluable as they are with respect to the 
discipline of the reasoning powers, can not instruct the judgment •„ 
it is only moral and religious knowledge which can accomplish this, 
and if, habitually removing such knowledge from the course of our 
studies, we exercise our thoughts and understanding exclusively on 
lower matters, what will be the result, but that when we come to 
act. upon these higher points, in our relations as citizens and men, 
we shall act merely upon ignorance, prejudice, and passion ? For 
notions of moral good and evil of some sort we must have ; but if 
we take no pains that these notions shall be true and good, what 
will our lives be But a heap of folly and of sin? This should be 
borne in mind carefully; and if these merely scientific or literary 
institutions appear to us to be sufficient for our instruction, if, hav- 
ing learned all that they can teach us, the knowledge so gained 
shall hide from us our moral ignorance, and make us look upon our- 
selves as educated men, then they will be more than inefficient, or 
incomplete ; they will have been to us positively mischievous." 

I now submit the cause to the court, so far as I am concerned. 
I can not take my seat, however, without submitting the inquiry : 
Where will the demand for the. rights of conscience end ? We 
are educated not only in schools, not merely by books, by 
painting, by sculpture, and by music, but by the experience and 
observation of daily life, by contact with men and things. The 
contemplation of a stately and beautiful church edifice, with its 
tall spire pointing heavenward, the solemn intonations of its Sab- 
bath bell, borne out upon 'the quiet morning air, may awaken 
thoughts of God, of immortality, of accountability ; may arouse 
a"slumbering conscience, and ultimately lead a bleeding and con- 
trite heart to the foot of the throne of God ! If this be so, ought 
the children of the unbeliever to be thus exposed to this constant, 
silent teaching ? And how long will it be until the demand will 
come that the church edifice shall be withdrawn from the public 
thoroughfare, or erected in the similitude of the private dwelling, 
with its spiral shaft displaced, and its muffled bell, to the end that 
the child on its way to the school in which the name of God is 
never heard, shall not see the one nor hear the other ? 



Argument of J. B. St alio. 59 

Minor et al. -v. Board of Education of Cincinnati et al. 



Argument of J. B, Stallo^ 



For the Board of Education. 



May it Please Your Honors — I thank my friend who 
has opened the debate on behalf of the plaintiffs in this cause, for 
the example of ability and thorough research which he has set me 
In the treatment of the subject under discussion, as well as for the 
frankness and candor so conspicuously displayed by him in stating 
the positions assumed by the plaintiffs and that large and respect- 
able part of the community which they profess to represent. 1 
can not hope to equal his ability, eloquence, and learning; but I 
will not be behind him, I trust, in candor. It is my purpose, as it 
is my duty, to reply to his argument, and thus to advance such of 
the propositions relied upon by us as are antagonistic to his own,— 
after briefly indicating, however, certain other positions about to be 
assumed on behalf of the defense, of which the argument of my 
friend is not an anticipation. There is a branch of the subject to 
which he has referred very cursorily, but which is, nevertheless, 
in my judgment, a very important topic in the discussion of the 
merits of his cause. I refer to the attitude of this Court to what 
has been termed the main question at issue. 

What is this case? It is an application by the plaintiffs to this 
Court to inhibit^ by its restraining order the carrying into effect of 
certain resolutions passed by the Board of Education of Cincinnati, 
abrogating a rule, or rules, established by the same Board (or its 
predecessor, the Board of Trustees and Visitors of the Common 
Schools) some eighteen years ago. The injunction prayed for is 
obviously mandatory in its nature ; it is in substance an order com- 



60 Superior Court of Cincinnati. 

Minor et al. <v. Board of Education of Cincinnati et ah 

manding the School Board to enforce the reading of the Bible and 
the teaching of religion in the public schools. If it is within the 
power and among the duties of the Court to make such an order 
now, it would manifestly have been the right and duty of the 
Court to make a similar order, upon the application of the proper- 
parties, if the School Board had never established a rule pre- 
scribing the reading of the Bible and other religious exercises in 
the schools committed to their care and supervision. 

It is plain that what your Honors are asked to do is nothing 
less than this: to wrest from the Board of Education the dis- 
cretionary power vested in thern by law ; to usurp the functions of 
the School Board. 

Upon what ground are your Honors asked to do a thing so 
dangerous and subversive of the very foundations of our govern- 
ment and laws? I say dangerous and subversive of government 
and law, because at the very base of the structure of our govern- 
ment lies the principle of the mutual independence of, and non- 
interference between, its several branches. There is an article in 
the Constitution of Massachusetts — one of the oldest now in 
force — which expresses this so clearly and emphatically that I 
beg leave to quote it. It is the thirtieth article of the first part of 
that instrument, and reads as follows: 

" In the government of this Commonwealth the legislative depart- 
ment shall never exercise the executive or judicial powers, or either of 
them ; the executive shall never exercise the legislative or judicial 
powers, or either of them ; and the judicial shall never exer- 
cise THE LEGISLATIVE or EXECUTIVE POWERS, OR EITHER OF 

them: TO THE END IT MAY BE A GOVERNMENT 
OF LAWS, AND NOT OF MEN.' 7 

My learned friend on the other side has taken it for granted 
that the case at bar is one of the ordinary cases in which courts 
restrain the action of corporate bodies, when that action exceeds 
their delegated powers, is ultra vires, or is in contravention of law, 
or in which they annul legislative acts on the ground that these 
acts violate the express provisions of the Constitution, or their 
necessary implication. He refers to the injunction granted by your 
Honors in what is known as the Lamp-post case, and to the injunc- 



Argument of J. B. Stalk. 61 

Minor et al. -v. Board of Education of Cincinnati et a/. 

tion recently made perpetual by the District Court, restraining the 
city of Cincinnati from executing a contract with the neighboring 
city of Covington for the supply of that city with water from our 
reservoirs. My friend forgets that the government of our public 
schools is not the exercise of corporate power at all; that the 
Board of Education is not a corporate body ; that its action is in 
its nature legislative, the legislature of the State acting in this 
matter through a particular instrumentality, created by it for a 
particular purpose. To show the authority of this Court for inval- 
idating, by its judgment and order, the resolutions of the School 
Board, he would have to place his finger upon some provision of 
the Constitution of the State, or of the United States, of which 
these resolutions are violative ; and this he does not even attempt 
to do. He merely refers to a series of past legislative acts (all of 
them, by the way, anterior to the adoption of the present Constitu- 
tion of Ohio), such as the Apprentice act, which prescribes the 
presentation of a Bible by the master to the apprentice at the end 
of his term, in order to exhibit what is termed the policy of the 
past legislation of the State. Now, has it ever been heard of 
before that an act of legislation was any the less valid because it 
was a departure from past legislative policy, so long as it did not 
transcend constitutional limits? What need is there of continued 
legislation, if there is to be no departure from antiquated policy, as 
well as from the letter of obsolete laws ? 

Whatever view your Honors may take of the action of the 
School Board, whether you regard it as the exercise of corporate or 
other delegated power, or as being in the nature of legislative 
authority, in either case you can not interfere with it. It is at least 
the exercise of a discretion vested in the Board by law, and no 
principle is better settled by the^ unbroken current of decisions in 
England and in the United States, by the unanimous declaration of 
the Federal as well as the State courts, than this : that such a dis- 
cretion, however unwisely exercised, can not be judicially interfered 
with. 

[Here Judge Stallo cited a number of cases in support of the 
proposition just announced.] 



/ 



62 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati ct al. 

I claim, therefore, with confidence, that the matter brought to 
the attention of this Court by the plaintiffs is within the sole, exclu- 
sive control of the Board of Education, and that your Honors have 
not the right to substitute your judgment for that of a majority of 
the members composing it. 

But now, having briefly discussed this preliminary part of our 
inquiry, I make bold to claim that the action of the School Board 
complained of by the plaintiffs is right; that it is wise; that it 
is both just and expedient ; that it is a simple application of the 
theory of our republican institutions, and an enforcement of the 
express provisions of the Constitution of our State ; and that if this 
Court had jurisdiction of the matter at all, its chancery powers 
ought to be invoked for the purpose of preventing the reinstate- 
ment at any time hereafter of the old rule, which prescribes the 
reading of the Bible and the celebration of religious rites in our 
public schools. 

The new Constitution of Ohio, in the seventh section of its 
Bill of Rights, provides: 

"All men have a natural and indefeasible right to worship 
Almighty God according to the dictates of their own conscience. 
No person shall be compelled to attend, erect, or support any place 
of worship, or maintain any form of worship, against his con- 
sent ; and no preference shall be given, by law, to any religious 
society; nor shall any interference with the rights of conscience be 
permitted. No religious test shall be required as a qualification for 
office ; nor shall any person be incompetent to be a witness on 
account of his religious belief; but nothing herein shall be construed 
to dispense with oaths and affirmations. Religion, morality, and 
knowledge, however, being essential to good government, it shall 
be the duty of the General Assembly to pass suitable laws to pro- 
tect every religious denomination in the peaceable enjoyment of its 
own mode of public worship, and to encourage schools and the 
means of instruction." 

Again, the second section of the sixth article of the same 
organic law reads 

" The General Assembly shall make such provision, by taxa- 
tion or otherwise, as, with the income arising from the school trust 
fund, will secure a thorough and efficient system of common 



Argument of J. B. St alio. 63 

Minor et al. v. Board of Education of Cincinnati et al. 

schools throughout the State ; but no religious or other sect or sects 
shall ever have any exclusive right to, or control of) any part of the school 
funds of this State." 

Phraseology more emphatic, more explicit, more unmistakable 
in its import, it would be difficult to devise. And yet my friend 
on the other side has cited these very provisions in support of his 
claim ai\d that of his colleagues, that religious instruction, conveyed 
by reading a book repudiated wholly or in part by a large class of citi- 
zens of this community, ought to be enforced in common schools 
which are supported by the taxation of all citizens alike, without 
distinction of creed ! Claims of sectarian privilege are preferred on 
the strength of enactments which were made canons of the Consti- 
tution for the express purpose of placing upon a surer foundation, 
than the variable will of legislative majorities, the equal civil rights 
of all men of whatever sect or creed ! The reasoning by which our 
opponents draw such a conclusion from the constitutional premises 
is as remarkable as the conclusion itself. Their reasoning, if I cor- 
rectly appreciate it, is based upon the assumption that the sense of 
the constitutional provisions, which I have adduced, is narrower 
than their abstract and literal import ; that these provisions must 
be construed in the light of the history of our country, the char- 
acter of its civilization and the genius of our national culture ; 
that the founders of our institutions and the framers of our Con- 
stitution meant simply to secure an equality of civil rights as 
between the various professors of Christianity, our institutions being 
founded upon Christian civilization, and our laws presupposing and 
deriving their sanction and binding force from the truths of the 
the Christian religion, as recognized alike by all the denominations 
of the christian community, and from the system of morality based 
upon these truths ; and that the reading of the Bible, without note 
or comment, in whatever version the parents of the children in our 
public schools may prefer, is not, and can not fairly be obnoxious to 
the adherents of any Christian sect or denomination. 

Before discussing the question as to the validity of this assump- 
tion I must be permitted to express my surprise at the persistency, 
no less than apparent sincerity, with which our opponents urge the 
claim that the reading of the Bible in the public schools is not sec- 



64 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

tarian, because it may be read either in the ordinary Protestant 
version or in any other version preferred by the parents, and 
because it is read strictly without note or comment. What will 
the Catholic say to this claim ? He will say that the relation of 
the Bible, in any version, to his faith, is wholly different from its 
relation to the faith of a Protestant ; that the Catholic seeker after 
religious truth turns to his church and not to the Bible, which is 
only one of many sources of religious truth, and which indeed is 
not such a source at all, unless it is resorted to as a means of 
instruction, with -appropriate comment and exposition, by the 
Roman Catholic Church ; that the reading of the Bible, even in 
the Douay version, without note or comment, involves the right of 
private judgment, a right which, in the sense in which it is asserted 
by the Protestant, the Catholic denies ; that the practice of read- 
ing the Scriptures without comment is an essentially Protestant 
practice, and a symbol of the Protestant faith. More than this, 
the Catholic apprehends danger from the uncommented and indis- 
criminate reading of the Bible, not only to what he regards as 
sound religious doctrine, but also (and here he is joined by many 
who are not Catholics,) to good morals. "It may be possible," he 
says, " to derive, if not all, at least a great part of the canons of 
Christian morality from the teachings of the Bible. It may be pos- 
sible to extract the principles of Christian purity from the lives of 
the patriarchs, as related in the Old Testament, — from the stories 
of Abraham, or Isaac, or Jacob, or of Lot, or of King Solomon, or 
of David. It may not be very difficult to enucleate maxims of hon- 
esty and good faith from the practices of Jacob and his sons, as set 
forth in the Bible. It may be practicable to realize a worthy con- 
ception of the Deity from Biblical accounts, which not infre- 
quently represent the Lord as subject to very human and appa- 
rently very ignoble passions; but to this end surely something- 
more is necessary than a mere sticking to the letter of the Bible ; 
to this end the infant mind, at least, must be aided by appropriate 
comment and exposition." 

It is not necessary, however, to confine our attention to the 
Catholics in order to see that the reading of the Bible in any ver- 
sion, without note or comment, by or under the direction of a 
teacher in the common schools has the natural tendency to being 



Argument of J. B. St alio. 6$ 

Minor et al. -v. Board of Education of Cincinnati et al. 

perverted, intentionally or unintentionally, so as to subserve secta- 
rian ends, and that it involves serious peril to the morals of the 
pupils. This may be seen as well if we forget the Catholics, and 
bring other Christians — Protestant Christians — into the fore-ground 
of our vision. To speak first of the tendency to sectarianism: 
nothing could be more illusory than the supposition that the mak- 
ing of improper comments is the only or chief mode of using the 
text of the Bible for sectarian purposes. The teachers in our pub- 
lic schools, by whom or under whose direction the Bible is read, 
are not abstract, non-denominational Christians ; they are or may be, 
some or all of them, Lutherans, Presbyterians, Methodists, Bap- 
tists, Trinitarians, Unitarians, etc. Each one has his religious bias, 
of which he will find it difficult to divest himself when he comes 
to read the Bible, with some parts of which he is peculiarly familiar, 
and parts of which he holds in peculiar esteem, according to the 
teachings of his peculiar church. He selects the passages to be 
read. If he be an Old School Presbyterian, he may fall upon 
those parts of the Scriptures which seem to him to teach predesti- 
nation, total depravity, justification by faith, effectual calling, the 
perseverance of the saints, and eternal damnation. If he be a 
Baptist of one school, he may single out such chapters as appear 
to militate against the practice of infant baptism, and uphold the 
doctrine of regeneration. The Trinitarian may prefer the texts 
upon which he bases his belief in the Trinity ; and the members of 
Rev. Mr. Mayo's church may omit the reading of passages such as 
the ninth verse in the fifth chapter of the first epistle of St. John. 

'Judge Storer : It is admitted by all Biblical critics that that 
passage was interpolated after the book was written. 

Judge Stallo: That is one reason why the Bible should not be 
read in the schools without comment. If it be read at all as the 
exponent of religious truth, explanations of a critical nature, show- 
ing what parts are or are not authentic should be added. 

Judge Storer: That has been done. 

Judge Stallo : Here is precisely the trouble. We require a great 
deal of commentary and critical learning to make the Bible a proper 
vehicle for sound religious and moral instruction. But to resume. 
It is but natural that a teacher who believes it to be true, what these 
plaintiffs allege in their petition, that the Bible ought to be read in 



66 Superior Court of Cincinnati. 



Minor et al. -v. Board of" Education of Cincinnati et al. 

the public schools in order that religion may be taught there, if 
he be a sincere and pious adherent of his faith, will endeavor as 
far as he can without a violation of the rule prohibiting doctrinal 
comment, to hedge and guard against the errors of other denomi- 
nations. And without adding a word to the letter of the book, he 
may inculcate the doctrines of his particular faith almost as effec- 
tually as though he preached a dogmatic sermon from the pulpit of 
his church. Zoologists teach us that nature produces the several 
genera and species of the vertebrates by taking the fundamental ver- 
tebrate type and developing a particular organ or set of organs in each 
case while dwarfing the others, without adding to the original com- 
plement of parts in the common vertebrate structure. Similarly, I 
apprehend, denominational differences may be evolved by emphasizing 
or bringing; into relief certain truths or doctrines taught or believed to 

DO O 

be taught by the Bible, and throwing the others into the background. 
If the whole body of Protestant Christian faith (and such the Bible is 
claimed to be by most Protestants, as I am told,) is placed in the 
hands of the teachers and children in the public schools, these schools 
inevitably become denominational schools, though of the poorest 
possible soft. I say of the poorest possible sort, for what religious 
culture can be imparted by the hurried, mechanical " dog-trot " (to 
borrow the somewhat irreverent expression of a distinguished Prot- 
estant divine) mumbling of scriptural passages, translated from 
writings which, granting that they are inspired, nevertheless 
embody, or at least reflect, the imagery and modes of thought of 
other ages of various degrees of remoteness, and of races and 
nations whose mental physiognomy is as strange to us as their 
physical aspect ? And it is not to be forgotten that the language 
of the translation even is the language of more than three centu- 
ries ago. It is not necessary to be a philologist in order to know 
what changes of meaning and import words have undergone during 
this long period of rapid moral and intellectual progress and devel- 
opment. 

So much as to the tendency of Bible reading, without note, 
to lend itself to sectarian teaching. The peril to the cause of 
good morals is no less obvious from a variety of considera- 
tions, of which I will mention only one. Thus far, I believe, 
the Board of Examiners has not asked any applicant for a certifi- 



Argument of J. B. Stalk. 67 

Minor et al. v. Board of Education of Cincinnati et al. 

cate of competency as a teacher, the question whether he believed 
in Christianity or not, and what he thought of the character and 
inspiration of the Bible. And there are men of culture quite able 
to pass the prescribed examination who believe that the Bible is by 
no means a proper standard of belief or morals. Suppose one of 
these men, employed as a teacher in our public schools, and 
compelled to read the Bible, should, for the purpose of quietly 
enforcing his view of the character of the Scriptures, so select his 
texts that the first lesson would be the story of a fratricide ; the 
second the account of the drowning of all mankind as incorrigible 

to to 

sinners ; the third a fraud practiced by a son upon his blind father; 
another, the drowning of hundreds of infants, or the slaying of an 
Egyptian by Moses, or of three thousand Israelites at his com- 
mand, or the killing of a thousand Philistines by Samson, or 
the meditated attempt upon the life of David by Saul, or David's 
task of procuring the heads of a thousand Philistines, or the treach- 
erous assassination of Uriah at the instigation of David, not to 
speak of the infamous acts of immorality and sensuality attributed 
to patriarchal and saintly personages. Suppose I say that an unbe- 
lieving teacher should thus comply with the letter of the rule which 
prescribes the reading of the Scriptures without comment, while 
doing violence to its spirit, who, in case of complaint, would be on 
the defensive, the School Board or the teacher? 

It may not be amiss, before I take leave of this subject, to 
call the attention of your Honors to another reason assigned by citi- 
zens who have the right to be heard, why the naked text of the 
Bible should not be presented to their children in the schools, or 
even to adults, as the authoritative exposition of God's whole truth. 
The citizens I refer to constitute a large and I believe growing 
class of sincere and devout Protestants, yea, of Protestant divines. 
While believing, in a modified sense, in the inspiration of the Bible, 
in its character as a revelation of God to man, they insist that the 
Scriptures should be read and interpreted with a view to the mental, 
moral, and physical condition and culture of the races and nations, 
whose history they relate, or whose life they portray, or with 
whose morals they profess to be concerned ; that there are precepts 
and commands both in the Old and New Testament, which it 
would not be proper to obey, and examples which it would not be 



68 'Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

wise to follow at the present day. And there are Protestant 
divines who hold tenets respecting the character and origin of the 
Scriptures which would seem wholly to preclude the propriety of 
presenting them to infant minds as a sacred book containing abso- 
lute truth. I will not speak of such men as Bishop Colenso, who 
is still a bishop of the Established Church, even after his trial 
before an ecclesiastical tribunal, or to the authors of Essays and 
Reviews. I will simply read, as an exemplification of modern 
Protestant thought upon this subject, the concluding page from 
the Introduction to the New Testament^ by Rev. Samuel Davidson, 
D. D., a Presbyterian clergyman, I am informed, in good 
standing. "The following propositions," says Mr. Davidson, "are 
deducible from an impartial survey of the history of the first two 
centuries : 

" i. Before a. d. 170, no book of the New Testament was 
termed Scripture, or believed to be divine and inspired. On the 
contrary, even after that date, different books were believed to be 
human compositions, having none other authority than their con- 
tents warranted. 

" 2. No certain trace of the existence of the fourth Gospel 
can be found till after Justin Martyr, i. e. till after the middle of 
the second century. That Gospel came into use in the first 
instance among the latter Gnostics, the followers of Basilides, Val- 
entinus, and Marcion, who do not seem to have ascribed it to John. 
Toward the end of the second century, and not till then, it was 
assigned to the apostle by fathers of the Catholic Church and by 
canons. On what ground this opinion rested can not be ascer- 
tained. One thing is clear, that the fathers, who believed in its 
Johannine authorship, neither assert nor hint that they relied on 
historical tradition for their opinion. 

" 3. The canonical Gospels of Matthew and Mark can not be 
identified with the logia of Matthew and the things said and done 
by Jesus, which, Mark wrote, mentioned by Papias. That "writer 
does not himself identify them. It is also noteworthy that he put 
oral tradition above written documents. 

"4. The writings of Paul were either not used or little 
regarded by the prominent ecclesiastical writers of the first half of 
the second century. After A. D. 150, they began to be valued. 

"5. The canon, as far as it relates to the four Gospels, was not 
settled at the close of the first century, as Tischendorff supposes. 



Argument of J. B. St alio. 



Minor ct. al. •v. Board of Education of Cincinnati et. al. 



Not till the latter half of the second century did the present Gos- 
pels assume a canonical position, superseding other works of a 
similar character, and receiving a divine authority. 

"6. No canon of the New Testament, /. e., no collection 
of New Testament literature like the present one, supposed to 
possess divine authority, existed before A. d. 200." 

It is not a little curious to see how nearly this summary of 
the Presbyterian divine agrees with certain propositions advanced 
by a Jesuit father, in a lecture on the Bible, recently delivered 
in this city, though the ulterior conclusions drawn by the two 
gentlemen, if they had an opportunity to compare notes, would 
probably prove to be widely divergent. 

It is not necessary, I hope, to remark that I do not cite the 
opinions and conclusions of Mr. Davidson and others for the pur- 
pose of urging them upon this Court or any member of this Court 
for adoption. It is of no consequence to my argument, whether 
your Honors agree to or dissent from these conclusions. As a 
Court, indeed, you have no right to any opinion upon the subject, 
for it is your duty to expound the law and not the Gospels. I cite 
the opinions and conclusions referred to simply to show, that they 
are held by a number of citizens, whose sincerity you have no more 
right to question than the sincerity of those, who proclaim the be- 
lief that the books of the Bible constitute God's sacred archives, 
containing the whole body of his revelation to man, and that every 
word contained in them is of direct divine inspiration. I cite them, 
because at the bar of this Court they are of as much weight — no 
more and no less — as the opinions of the plaintiffs, and because 
those who hold opinions called heterodox have precisely the same 
right to have them enforced by the State, which the plaintiffs may 
claim for the enforcement of their orthodox belief. 

It must be evident, I think, to every candid mind, from the 
preceding considerations, that the reading of the Bible, in any ver- 
sion, without note or comment, can not possibly be anything else 
than a sectarian exercise. And it must be further evident to all 
whose vision is not completely obstructed by their prejudices that 
the hurried, perfunctory reading of the Bible in the schools, of 
necessity tends more to impede than to promote religious culture; 
that, indeed, its only office is to serve as a badge of a particular 



70 Superior Court of Cincinnati. 

t . 

Minor et al. -v. Board of Education of Cincinnati et al. 

faith-r-as the symbol of Protestantism, (or as a Protestant minister, 
who insists upon its continuance, has recently expressed it) as the 
flag of Protestantism on our school houses. And I insist that 
every flag, of whatever glorious achievements on the field of reli- 
gion it may be emblematic, if it tends to drive nearly one- 
half of our children from the colleges of the people, which their 
parents have helped to establish and maintain, must come down. 

To show how idle it is to assert that the reading of the Bible 
in the schools ought not to be offensive to reasonable Catholics and 
others, let me. suppose a case. It is entirely possible that the time 
is not far distant, when the Catholics in this city will be in the ma- 
jority. Now up to the days of the reformation, every Christian, 
from time immemorial, symbolized his faith in the doctrine of 
redemption, by making the sign of the cross before and after every 
secular act of his life, after rising and before going to sleep, before 
and after meals, etc. This practice is commemorated by innumer- 
ble authorities, some' of which are not wholly spurned, even by 
Protestants. " Ad omnem promotum," says Tertullian {De Cor. 
Alii. Ill) " ad omnem progressum, ad omnem aditum et exitum, ad 
vestitum, ad calceatum, ad lavacra, ad mensas, ad lumina, ad cubi- 
cula, ad sedilia, quandocunque nos conversatio exercet, frontem 
crucis signaculo terimus." Similarly Cyril [Hieros. Catech. IV). 
" Fac hoc signum, sive edas, sive bibas, sive sedeas, sive stes, sive 
loquaris, sive ambules, sive in omni negotio, et seq." The cross 
is the sacred symbol of Christianity, and the making of the 
sign an inveterate practice, for the refusal to renounce which many 
of the early professors of the faith have suffered the death of mar- 
tyrdom. What would the Protestants say if a Catholic majority 
in the School Board should enjoin this practice upon the teachers 
and children in the public schools? Would they listen to the plea 
that no believer in the death of the Redeemer on the cross could 
reasonably object to the emblem of universal salvation ? Would 
not their instant reply be : It is enough for us to know that the 
sign of the cross is now the peculiar symbol of Catholicism, and it 
can not be tolerated in the schools established by and for Protes- 
tants and Catholics alike ? And has not the Catholic the right, 
for the same reason, to say: reading the Bible without comment is 



Argument of J. B. Stalk. 71 

Minor et al. <v. Board of Education et al. 

the peculiar symbol of Protestantism, and it is not to be tolerated in 
the schools established by Catholics and Protestants alike? 

Thus far I have considered the main question at issue on the 
hypothesis that the theory of our opponents, according to which 
the equality of all forms of belief before the law is applicable 
only to Christian beliefs, is tenable. I have argued the question as 
it stands between the various Christian denominations, leaving out 
of account the large body of citizens who are not Christians, the 
Jews, and those persons whose faith is not formulated in the writ- 
ings and professions of any of the Christian sects, those who 
have lately been indiscriminately denounced as atheists and infidels. 
That as against the belief or non-belief of these citizens, and in 
view of the presence of their children in the public schools, the 
Bible, embracing the Old and New Testament, is not a sectarian 
book, can not, I am sure, be seriously contended. If they have 
equal civil rights with the orthodox Christians, the Bible must of 
necessity be excluded from the State schools, and sent to the 
Christian houses, Sunday schools and churches. The objection of 
the Israelites and freethinkers to the reading of the Bible in schools, 
which they have helped to erect and still help to maintain equally 
with orthodox Catholics and Protestants, can be successfully met 
only by the assertion, which I understand to be distinctly made on 
the other side, that Christianity is part of the fundamental law of 
the State and that the Bible is an organic instrument behind the 
Constitution, for the reason, that both our social life and our 
political institutions rest upon the broad substratum of Christian 
civilization. 

The doctrine thus seriously (and in view of the exigencies of 
their case necessarily) broached by our opponents, that Christianity 
is part of the common law of our State, because this law has its 
roots in Christian civilization, is a momentous doctrine. It is preg- 
nant with the most serious consequences. It draws in question 
the civil rights, as I believe, of nearly one-half of our citizens. I 
propose to examine it therefore candidly, fearlessly, and as far as I 
may thoroughly. If this is a Christian country, in the sense that 
the non-Christians have no rights which the Christians are bound 
to respect, or in the narrower sense, that the Christians enjoy 
rights and privileges, which the law denies to the non Christians, 



72 Superior Court of Cincinnati. 

Minor et al. r v. Board of Education et a/. 

the time has come for the refluence of the wave which has brought 
so many millions of European thinkers and laborers to the shores 
of the new Western world. 

While entering upon the inquiry into the truth or falsity of 
this great fundamental theory of our opponents, I am puzzled in 
limine to understand, what is meant by the sounding phrase, that 
Christianity is part of the common law of the State. The law — ■ 
positive civil law — either imposes duties or it confers rights. If 
Christianity is part of the law of the State, then, there must be 
certain duties enjoined upon the citizens, which are peculiarly 
Christian, or certain rights, which none but Christians possess. 
Now the duties enforced by the State, the duty to respect your 
neighbor's life, his person, his property, his good name, to refrain 
from murder, robbery, theft, defamation, etc., are not peculiarly 
Christian duties; they are enforced or at least enjoined by all 
States, whose citizens are civilized in any modern sense. They 
are enjoined and enforced because -their observance is essential to 
the very existence and good order of society, and not because they 
are Christian virtues. I know of no duty which the State recog- 
nizes as a merely Christian duty. Similarly I know of no civil 
right which the Christian holds in preference over the professors of 
another creed or of no creed. The Jew for instance,, can hold 
property. He can acquire it by inheritance, or by devise, or by 
purchase. He can sue and be sued. There are the same remedies, 
civil and criminal, for wrongs inflicted upon a Jew, as for those 
done to a Christian. The Jew can be a witness in a court of jus- 
tice, for the Constitution provides, that " no person shall be incom- 
petent to be a witness on account of his religious belief." The 
Jew has the right to vote. He can hold any office, for again the 
Constitution provides, " that no religious tests shall be required as 
a qualification for office." A Jew may sit upon the bench, and 
administer justice " zvithout respect oi persons,' between Christians, 
as a Jew now sits upon the bench in Mew York. A Jew may 
not only administer the law, but help to make it. A Jew sat last 
winter, in the Ohio Legislature, and there is nothing in the Con- 
stitution to hinder that the majority of the Legislature may be 
Jews — a case which, according to the theory of the plaintiffs, 
would present the remarkable anomaly of a body of Jews making 



Argument of J. B. St alio. 73 

Minor et ah <v. Board of Education of Cincinnati et al. 

Christian laws. A Jew was recently appointed, by this Court, com- 
missioner of the Southern railroad. Jews have sat in both Houses 
of Congress. A Jew may be President of the United States, if he 
has the requisite other qualifications and can obtain the requisite 
number of electoral votes. A Jewish temple or synagogue is 
exempt from taxation no less than a Christian church. I might 
proceed indefinitely with this enumeration of rights, but I have 
gone far enough to show, that there is no particular, definite civil 
right, which Jews, Christians and non-believers do not share in 
common. And in view of this I am not able to see the force of 
the assertion so frequently and so confidently made, that Christi- 
anity is part of the law of the State. It is strange, that any one 
should at this day refer to the nebulous deliverances of Judge Story 
in his Commentaries of the Constitution (sees. 1870— 1879), and seek 
to discredit as an obiter dictum the emphatic language of our own 
Supreme Court in the case of Bloom v. Richards, 2 Ohio State 
Reports, 387, which I now beg leave to quote. 

"The Constitution of Ohio," says Judge Thurman, in decid- 
ing that case, "having declared that all men have a natural and 
indefeasible right to worship Almighty God according to the dictates 
of conscience; that no man shall be compelled to attend, erect or 
support any place of worship, or to maintain any ministry against 
his consent; and that no preference shall ever be given by law to 
any religious society or mode of worship, and no religious test shall 
be required as a qualification to any office of trust or profit, it fol- 
lows that neither Christianity or any other system of religion is a 
part of the law of this State. We sometimes hear it said that all 
religions are tolerated in Ohio, but the expression is not strictly 
accurate. Much less accurate is it to say that one religion is a 
part of the law, and all others only tolerated. It is not by mere 
toleration that every individual here is protected in his belief or 
disbelief, He reposes not upon the leniency of Government or 
the liberality of any class or sect of men, but upon his natural, 
indefeasible rights of conscience, which, in the language of the 
Constitution, are beyond the control or interference of any human 
authority. We have no union of Church and State, nor has our 
Government ever been vested with authority to enforce any relig- 
ious observance, simply because it is religious." 



74 Superior Court of Cincinnati. 

Minor % et at. -v. Board of Education of Cincinnati et ah 

" Of course it is no objection, but, on the contrary, is a high 
recommendation, to a legislative enactment, based upon justice or 
public policy, that it is found to coincide with the precepts of a 
pure religion, but the fact is, nevertheless, true, that the power to 
make the law rests in the legislative control over things temporal, 
and not over things spiritual. For no power over things merely 
spiritual has ever been delegated to the Government, while any 
preference of one religion over another, as the statutes would give 
upon the above hypothesis, is directly prohibited by the Constitution. 
Acts evil in their nature, or dangerous to the public welfare, may 
be forbidden, and punished, though sanctioned by one religion and 
prohibited by another; but this creates no preference whatever, for 
they would be equally forbidden and punished if all religions per- 
mitted them. Thus, no plea of his religion could shield a murderer, 
ravisher or bigamist; for community would be at the mercy of 
superstition if such crimes as these could be committed with 
impunity, because sanctioned by some religious delusion." 

It is to be observed that this opinion was the unanimous judg- 
ment of the whole Court, that the propositions here quoted were 
necessary premisses for the conclusion arrived at by the .Court in 
deciding the case, and that they were made authoritative by being 
incorporated into the syllabus by the Court itself. And the same 
doctrine has been emphatically reaffirmed by the whole Bench in a 
subsequent case, with which your Honors are familiar. 

My friend on the other side has referred to the case of Vidal 
et al. v. Girard's Executors^ 2 Howard, 127, which is supposed to 
be in conflict with the decision of our Supreme Court ; and he has 
adopted the "great and immortal" argument of Mr. Webster in 
that case, as his own. When he comes to read the opinion of 
Judge Story, who sustained the will of Mr. Girard and upheld his 
bequest, my friend will be as much at a loss as I am, to determine 
what Judge Story means by saying that Christianity is part of the 
law of Pennsylvania. For, after stating this proposition in general . 
terms, the Judge proceeds carefully to evacuate it of all intelligible 
meaning. As he himself, if he had appreciated the real force of his 
reasoning, would have said, quoting from Papinian: "Derogat 
generi per speciem" As to the argument of Mr. Webster, which 
has been so much eulogized bv Christian laymen and presbyters, 



Argument of J. B. St alio. y t 

Minor ct al. v. Board of Education of Cincinnati et al. 

opinions may differ among those who regard it, not as a mere ora- 
torical display, but as a defense of Christianity, and an exhibition of 
ijts spirit in the fierce duel with infidelity. Let us see for a moment 
under what circumstances and to what end that great argument 
was made. Mr. Stephen Girard, who appears to have been one of 
the unfortunate men to whom my Christian friend vouchsafes his 
tender commiseration, devised and bequeathed the bulk of his prop- 
erty (several millions of dollars) to the mayor, aldermen and citi- 
zens of Philadelphia, for the establishment and maintenance of a col- 
lege for the education of "poor white male orphan children." Hating 
the sectarian wrangles of which he had been a witness in Philadel- 
phia, but expressly disclaiming any intention to reflect upon Chris- 
tianity, or any sect or person whatever, he provided, that no eccle- 
siastic or minister should enter the precincts of his college, express- 
ing it as his desire "that all the instructors and teachers in the col- 
lege shall take pains to instil into the mind of the scholars the 
purest principles of morality, so that on their entrance into active life 
they may, from inclination and habit, evince benevolence toiuard their 
fellow-creatures, and a love of truth, sobriety and industry, adopting, 
at the same time, such religious tenets as their matured reason may 
enable them to prefer." 

The trust was accepted ; the college was founded ; orphans 
were gathered under its roof, and trained by good men in the ways 
of truth, honesty and charity. But presently it was found that 
Mr. Guard's will was, to use the expression of my Christian friend, 
a "blunderbuss loaded with infidelity to be fired off" by other men, 
after the malevolent heathen Girard had sneaked into his grave." 
And, thereupon, came Mr. Webster, to empty that blunderbuss of 
its dangerous contents. How did he come, and in what way did 
he seek to interpose the shield of Christianity between the posthu- 
mous machinations of the infidel and the precious welfare of 
humanity? Did he come at the head of poor Christian orphans, 
such as that other Frenchman, St. Vincent of Paul, used to gather 
about him in the streets of Paris or Marseilles, and did he propose 
to drive infidelity out of Girard College, putting Christianity in ? 
Not at all. He came at the head of a number of rapacious heirs 
(who, if they were average modern Frenchmen, must have been 
strange representatives of the Biblical Christianity of my enthusi- 



J 6 Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et al. 

astic friend), and in their name, and for their and his benefit, he 
proposed, by the aid of the Supreme Court of the United 
States, to tear Girard's will into fragments, to demolish the 
noble edifice of the Orphans' College, to turn the fatherless chil- 
dren into the street, and to parcel out the orphans' legacy among 
Francois Fenelon Vidal, John F. Girard, with other heirs-at-law of 
Stephen Girard, and Daniel Webster ! Fortunately, the judges of 
the Supreme Court, while they listened to the eloquence of the 
distinguished advocate, were not duped by his sophistry. They 
sent him and his clients out of court with an opinion which may 
be summed up in the few lines of an English poet, who was cursed 
by the pious " evangelical " Christians of his day alternately for 
his popery and his infidelity : 

u In faith and hope the world will disagree, 
But all mankind's concern is charity; 
All must be false that thwart this one great end, 
And all of God that bless mankind, or mend." 

Devotion to Christianity sometimes breaks out in very extra- 
ordinary manifestations. Some weeks ago I saw in an evening 
journal of this city a series of resolutions passed by a Christian 
association, shortly after the adoption of the resolutions by the 
School Board which purify the State schools from sectarianism, 
and throw their doors wide open for the entrance of the children 
of all citizens alike. In those resolutions the Christian association 
called upon all Christians to direct their prayers to Almighty God 
u during the continuance of the present emergency," that He 
might soften the hearts of those who sought to exclude the Bible 
from the common schools, and convert them, u even as Saul of 
Tarsus was converted into the believing Paul." And prayers have 
been said, I am told, in many of the churches, and, no doubt, in 
many houses, ever since. Whether your Honors were included in 
these prayers, so that the Lord might enlighten your understand- 
ings, I can not say. Now, what was the real burthen of these 
petitions, so devoutly addressed to the God of justice and right? 
What did these plaintiffs (some of whom were, no doubt, among 
the petitioners), when they approached the Throne of Mercy with 
their supplication, pray for ? Looking beneath their form of words 



Argument of J. B. St alio. 77 

Minor et a/, -v. Board of Education of Cincinnati ct al. 

to their true meaning, their prayer may, without irreverence or 
injustice, be paraphrased into an imploration like this: a O Lord, 
deliver us from the necessity of educating our children at our own 
expense ; help us to take money out of the pockets of the Jew and 
the unbeliever, so that we may train our youth in Thy ways ; 
harden the hearts of our legislators and judges, so that they may 
shut the doors of our common schools at the approach of the 
poor children of those who sign their names with a significant 
cross or a mysterious X!" Up to this moment, I believe, there 
is no evidence that these humble prayers have been answered, and 
I trust that the answer will not come in the form of a judgment 
of this Court! I trust that your Honors will not overrule the 
solemn decision of our Supreme Court and do violence to the 
spirit of our liberties, no less than the words of our Constitution, 
by deciding that Christianity — Protestant Christianity — being the 
the law of the State, the rights of Jews, Catholics, and free- 
thinkers need not be considered. I point to the history of our 
country, to the spirit and language of our Constitution, to the 
decisions and practice of our courts, to the necessities arising from 
the condition of our society, and say that Christianity is not and 
can not be the law of the State. Christianity was part of the 
common law of Massachusetts two hundred and thirty-three years 
ago, when Roger Williams was cited before the General Court for 
preaching the doctrine of liberty of conscience, and was sent into 
the wilderness in midwinter for that offense — when Quakers were 
banished and Quakeresses hanged; it was part of the law of the 
State of New York when the penalty of death was threatened to 
be inflicted on Catholic priests for bringing the sacrament to the 
dying faithful; it was a part of the common law of Virginia 
when dissenters were required to build the churches of the 
Anglican cavaliers ; but it is not to-day, thanks to the followers of 
the Protestant Roger Williams, and the Catholic Charles Carroll, 
and the Infidel Thomas Jefferson, a part of the common law of 
Ohio, or, indeed, of any State in the Union I know of. 

Having now shown, or attempted to show, that the current 
doctrine, according to which Christianity is a part of the common 
law of the State, has not only been emphatically denied and repu- 
diated by our Supreme Court, but has no intelligible meaning and 



yS Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

practical import in view of our Constitution, and of our law as 
found in the statutes and administered in the courts, I desire to 
proceed a step further, and inquire whether or not it be true, as 
has been so repeatedly and tenaciously claimed, that not only our 
social life, but also our free political institutions, are grounded in 
Christian civilization. 

I desire to examine this question, because it is one of the 
premisses from which the conclusion (which I have already shown 
to be erroneous in fact) is drawn that Christianity is the funda- 
mental law of the State. It is the minor premiss in the syllogism, 
by which that conclusion is reached, the major premiss being that 
the law of necessity perpetuates the state of civilization in which 
the institutions, to which the law is subservient, have arisen. It 
is true that, in a strict sense, the inquiry upon which I am about to 
enter, is unnecessary and irrelevant. If the major premiss of the 
syllogism is untenable, there is no need to examine into the validity 
of the minor. And I deny the truth of the general proposition 
that the life of the past imposes itself in the form of law as a lim- 
itation upon the life of the present and future. It does not follow 
from the prevalence of Paganism or Judaism at the time when 
Christianity took its origin, that Paganism or Judaism was the 
fundamental law of the empire under Constantine ; it does not 
follow that Catholicism was the law of the northern states of 
Europe at the time of the Reformation, because up to that time 
the civilization of Europe had been preeminently Catholic, or that 
IVtonasticism must everywhere remain intact, inasmuch as the 
learning and culture of tha't age had been fostered in monastic 
institutions. 

Nevertheless, the minor premiss, above referred to, has of 
late been so -strenuously insisted upon, and seems to be regarded 
as so important a part of the argument in favor of the enforce- 
ment by the State of the religion of the Bible, that I deem it 
proper to challenge its truth. In view of the momentous issue 
before us, it is best to dig up the pestilent doctrine which seeks to 
inject ^ecclesiastical dogmatism into civil law, by all its roots. 

Before proceeding to say what I desire to say upon this sub- 
ject, I beg leave, at the outset, to disclaim any intention ( to 



Argument of J. B. Stalk. yg 

Minor et al. -v. Board of Education of Cincinnati et al. 

derogate from the just claims of Christianity for its achievements 
in history. I yield to no man in reverence for the institutions and 
forms which have perpetuated the great moral traditions of the 
human race, which have, developed its blind, groping instincts of 
right into consciousness of duty, and by their discipline hardened 
the precepts of God or man into habits of virtuous life. I revere 
Christianity as being one of these institutions, and, in the days of 
its purity, the noblest of them. I revere it, because to Christianity 
I owe a part, at least, of that little moral culture which enables 
me to-day to bow with becoming humility under the commisera- 
tion so tenderly expressed for the unbelievers by my Christian 
frend on the other side. Above all, I revere Christianity because, 
in proclaiming the spiritual dignity of man, and asserting the 
accountability of the human soul for agreement between life and 
conviction, it has established — in theory, at least — beyond the 
possibility of denial, the freedom of thought and conscience. 
Having said this in all sincerity, I hope to be pardoned when I 
say, with equal sincerity, that I do not believe the spirit incor- 
porated in our political institutions, the spirit which caused our 
fathers to found, them and causes us to uphold them; to be the 
spirit of Christianity. While I recognize to its fullest extent the 
importance of cultivating Christian virtues in a republican com- 
munity, I hold it to be an error to maintain that our republicanism 
is due to the Christian elements in the culture of our people, 
whether you look to the dogmas or the ethics of Christianity, its 
theory or its practice. 

What is the fundamental theory of Christianity ? A total 
denial of the value of the things of this life as compared with the 
inestimable value of the possessions in another. Christianity 
writes an infinite denominator under the finite numerator of this 
world, and thus reduces the value of the fraction to zero. In the 
words of Christ, and generally in the words of his followers, it 
asserts the equality of all men; but the equality upon which it 
insists is a spiritual, not a temporal equality. It is equality before 
God, not before the lav/. Whenever, in history, the teachers of 
Christianity, the Bible or the Church, have spoken of the realiza- 
tion of that equality, they have pointed to the world beyond. In 
the view of the Christian, the equal brotherhood of all men is to find 



80 Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et al. 

its vindication, not before the throne of an earthly king or the bar 
of a republican tribunal, but before the throne of God. And it is 
a necessary consequence of this depreciation by Christianity of all 
earthly affairs, that the virtues inculcated by Christianity are the 
virtues of resignation, humility, meekness, obedience, self-denial, 
charity, etc. — noble virtues, indeed, but not such virtues as lead to 
the establishment or maintenance of a democracy or a republic. 

Neither Hampden nor the patriots who fought at Concord or 
Lexington were men who tendered their right cheek after they had 
been smitten on the left. The truth is (however sad it may be in 
the eyes of my friends on the other side) that political freedom is* 
born of the spirit of stalwart and manly self-assertion ; of the 
readiness to do battle for personal right ; of the disposition to 
quarrel about a penny or pound which is wrongfully exacted ; and 
to resent — mortally to resent — : every injury or insult to the person. 
If the founders of our liberty had been thoroughly imbued with 
the teachings of St. Paul, in the thirteenth chapter of his epistle to 
the Romans, written during or shortly after the massacre of the 
Christians by Nero, in Rome, they would never have inaugurated 
the Revolution. 

Christianity discourages interest in political life, preaches sub- 
mission to constituted authority, and stifles the impulse of resist- 
ance to wrong. It is doing no injustice to Christianity to say, that 
for more than twelve hundred years it was everywhere the faithful 
handmaid of despotism, whenever this was willing to avail itself 
of its services. 

Now, for this reason, and for the further reason that Chris- 
tianity inculcates uninquiring faith and undoubting belief, and 
represses that spirit of free and courageous thought which chal- 
lenges dogmatic assertion no less than despotic behest, and which, 
together with the spirit of manly vindication of personal right 
already alluded to, integrates the spirit of modern political libertv, 
it can not be true that Christianity, as against the generically 
human elements in our culture, is the foundation of our republican 
institutions. 

Let me not be misunderstood. While I do not believe, for the 
reasons already assigned, and for further reasons, which I am about 
to assign, that the rise and progress of our republicanism is due to 



Argument of J. B. St alio. 



Minor et al. -v. Board of Education of Cincinnati ct al. 

Christianity, I have no intention whatever to claim that Christian 
virtues are superfluous in a republican state. I do not at ail mean 
to deny that those virtues, which Christianity, by reason of its genius 
has had the preeminent tendency to foster — humility, meekness, 
charity, forbearance, obedience, etc. — are necessary in order to tem- 
per the generically human virtues or instincts, or passions, or what- 
ever else you choose to call them, and thus to prevent the lapse of 
freedom into anarchy. Such Christian virtues cement the fabric of 
the State and tend to uphold it. But, as all history shows, their 
sedulous cultivation is far more favorable to the maintenance of 
despotism than of republican liberty. 

It is sometimes said that the establishment of free institutions 
in the north of Continental Europe, in England and in the United 
States is due to Protestantism. In a certain sense this is perfectly 
true, but in the sense in which the claim is now made it is the 
reverse of the truth. Protestantism embraces two elements which 
may be designated as the negative and the positive elements. Its 
negative element is the spirit of denial, both of dogmatic assertion 
and of constituted authority, the spirit of resistance to the dictation 
of the Church no less than the arbitrary commands of the temporal 
ruler, the spirit of independent belief and private judgment — the 
same spirit which is now denounced in this Court as the progenitor 
of atheism and disbelief. Its positive element, on the contrary, is 
its tendency to erect the transitory opinions of its adherents into 
permanent and binding articles of faith, to maintain forever posi- 
tions temporarily assumed during its antagonisms with the ecclesias- 
tical system from which it emerged, to substitute the authority of 
the dead letter of a book for the authority of the Church, or the 
authority of reason, and to execrate and anathematize those who seek 
to keep alive the spirit from which Protestantism itself was born, in 
terms as fierce as those with which it had spurned the traditions of 
the past. If we look to the former, the negative element, it is 
unquestionably true, that the freedom of our institutions is the child 
of Protestantism ; but if we leave this out of view and only regard 
the latter, the positive element, it is as indisputably true that our 
freedom is in its very nature a protest against Protestantism. Dog- 
matic Protestantism is less fatal to civil liberty than dominant Cath- 
olicism only because it is less powerful. 



Superior Court of Cincinnati. 



Minor tt al. "v. Board of Education of Cincinnati et al. 



To illustrate and enforce my assertion that Christianity, Pro- 
testant as well as Catholic, Christianity as it stands forth in his- 
tory — is destructive of that mobility and independence of thought, 
without which free institutions can not endure, I beg leave to quote 
a passage from an author, who is justly distinguished for his truthful i 
candor and judicial impartiality. Mr. Lecky, in his History pf\ 
Rationalism in Europe, vol. ii., p. 90 (Appleton's American edi 
tion), says : 

" Until the seventeenth century every mental disposition which 
philosophy pronounces to be essential to a legitimate research was 
almost' uniformly branded as a sin, and a large portion of the most 
deadly intellectual vices were deliberately inculcated as virtues. It 
was a sin to doubt the opinions that had been instilled in childhood 
before they had been examined ; it was a virtue to hold them with 
unwavering, unreasoning credulity. It was a sin to notice and 
develop to its full consequence every objection to those opinions ; 
it was a virtue to stifle every objection as a suggestion of the, devil. 
It was sinful to study, with equal attention, and with an indifferent 
mind, the writings on both sides; sinful to resolve to follow the 
light of evidence wherever it might lead ; sinful to remain poised 
in doubt between conflicting opinions ; sinful to give only a qual- 
ified assent to indecisive arguments ; sinful even to recognize the 
moral or intellectual excellence of opponents.- In a word there is 
scarcely a disposition that marks the love of abstract truth, and 
scarcely a rule which reason teaches as essential for its attainment, 
that theologians did not for centuries stigmatize as offensive to the 
Almighty. 

"By destroying every book that could generate discussion; by 
diffusing through every field of knowledge a spirit of boundless 
credulity, and, above all, by persecuting with atrocious cruelty 
those who differed from their opinions, they succeeded, for a long 
period, in almost arresting the action of the European mind, and in 
persuading men that a critical, i'mpartial, and inquiring spirit was 
the worst form of vice. From this frightful condition Europe was 
at last rescued by the intellectual influences that produced the 
Reformation, by the teaching of those great philosophers who 
clearly laid down the conditions of inquiry, and by those bold inno- 
vators who, with the stake of Bruno and Vanini before their eyes, 
dared to challenge directly the doctrines of the past. By these 
means the spirit of philosophy or of truth became prominent, and 
the spirit of dogmatism, with all its consequences, was proportion- 
ately weakened." 



Argument of J. B. Stalk. 83 

Minor et al. nj. Board of Education of Cincinnati et al. 

These words of Mr. Lecky, the truth of which no one with 
the book of history before him can successfully question, suffi- 
ciently show how erroneous is the assumption that human freedom 
is the product of Christian civilization ; that Christianity has nursed 
the growth of spiritual or temporal independence. Christianity, 
like every other institution, must submit to the judgment of history ; 
it must be tried by what it has done and avouched when it had the 
power to assert # itself. I have already admitted that Christianity 
proclaimed the universal brotherhood of men; if this, its cardinal 
principle, had in time proved to be the principle of its devel- 
opment as an institution, as an authoritative and efficient teacher 
and disciplinarian of men, as a producer of human civilization, its 
history would have been a continued assertion of liberty, and our 
opponents would be right in maintaining that our free institutions 
are founded upon Christian civilization. But unfortunately the 
history of Christianity has been, in all its phases, and at all times, 
the continued assertion of despotism. This is true not only of 
Christianity in the middle ages, but of Christianity in the earliest 
as well as the most recent times. Upon this subject I again invite 
your Honors to hear Mr. Lecky. Speaking of early Christianity, 
when it was yet in the throes of emergence from Paganism and 
Judaism, he says (op. cit. p. 22) : 

"From the very moment the Church obtained civil power 
under Constantine, the general principle of coercion was admitted 
and acted on, both against Jews, heretics and pagans. The first 
had, at this time, become especially obnoxious on account of a 
strong Judaizing movement, which had produced one or two here- 
sies and many apostasies ; and they were also accused of assailing 
'with stones and other manifestations of rage' those who aban- 
doned their faith. Constantine provided against those evils by a 
law, in which he condemned to the flames any Jew who threw a 
stone at a Christian convert, and at the same time rendered it penal 
for any Christian to become a Jew. Against the Arian and 
Donatist heretics his measures were more energetic. Their 
churches were destroyed, their assemblies were forbidden, their 
bishops banished, their writings burnt, and all those who concealed 
those writings threatened with death. Some of those Donatists 
were actually condemned to death, but the sentence was remitted, 
and any blood that was at this time shed seems to have been due to 
the excessive disturbance of the Circumcelliones, a sect of Donatists 



8 4 Superior Court of Cincinnati. 



Minor et al. v. Board of Education of Cincinnati et at. 



whose principles and acts appear to have been perfectly incompati- 
ble with the tranquility of the state." 

And, in a note, referring to Milman's History of Christianity 
and Palmer On the Church, he adds : 

" The Arians had to pay ten times the taxes of the orthodox. 
The first law that has come down to us in which the penalty of 
death is annexed to the simple profession of a heresy, is law Q, 
De Hcereticis in the Theodosian code." 

Such was Christian civilization, Christian fostering of freedom 
in the times of early Christianity — not in the period of mediaeval 
Catholicism, upon which Protestants are wont to charge all the sins 
of persecution, but at the epoch of that primitive neutral Christianity, 
the paternity of which must be recognized by all Christian sects 
and denominations. 

I forbear to speak of the middle ages — of the time when the 
Church was the State, and no one dared to question her authority 
in temporal matters. Every one within the hearing of my voice is 
familiar with the horrors of that period. 

But, it may be said, we are dealing in this case with Protestant 
Christianity. Well, I turn to Protestantism and again quote Lecky 
(op. cit. p. 46) : 

" While the preeminent atrocity of the persecutions of the 
Church of Rome is fully admitted, nothing can be more grossly 
disingenuous or untrue than to represent persecution as her peculiar 
taint. She persecuted to the full extent of the power of her 
clergy, and that power was very great. The persecution of which 
every Protestant church was guilty, was measured by the same 
rule, but clerical influence in Protestant countries was compara- 
tively weak. The Protestant persecutions were never so san- 
guinary as those of the Catholics, but the principle was affirmed 
quite as strongly, was acted on quite as constantly, and was defended 
quite as pertinaciously by the clergy. In Germany., at the time of 
the protestation of Spires, where the name of Protestant was 
assumed, the Lutheran princes absolutely prohibited the celebration 
of mass within their dominions. 

"In England a similar measure was passed as early as Edward 
VI. On the accession of Elizabeth, and before the Catholics had 
given any signs of discontent, a law was made prohibiting any 



Argument of J. B. Stalk. 85 

Minor et al. -v. Board of Education of Cincinnati et al. 

religious service other than the Prayer Book, the penalty for the 
third offense being imprisonment for life ; while another law im- 
posed a fine on any one who abstained from the Anglican service. 
The Presbyterians, through a long succession of reigns, were 
imprisoned, branded, mutilated, scourged, and exposed in the pil- 
lory. Many Catholics, under false pretenses, were tortured and 
hung. Anabaptists and Arians were burnt alive. 

" In Ireland the religion of the immense majority of the people 
was banned and proscribed ; and when in 1626 the Government 
manifested some slight wish to grant it partial relief, nearly all the 
Irish Protestant bishops, under the presidency of Usher^ assembled to 
protest in a solemn resolution against the indulgence „" 

fudge St over. It is not necessary to consume time by enlarging 
upon these things with which we are all familiar. We all know 
that persecution is not Christian. 

fudge Stalk. Certainly, persecution is against the spirit of 
Christianity, as your Honors understand it. And I am aware that 
your Honors are perfectly familiar with many things to which I 
have been constrained to advert in view of the extraordinary posi- 
tions taken by my friends on the other side. I have felt all along 
as though in facing these positions, I was bringing an ancient cata- 
pult to batter down the walls of a fortress which was successfully 
stormed under the fire of the heaviest siege guns, a hundred 
years ago. But my friends choose to take these positions, and 
I am referring to history to show that unfortunately Christianity, 
whenever it had the power, practiced and preached persecution, 
and that this is true of evangelical Protestantism as well as of 
any other form of Christianity. Hear what Mr. Lecky says 
(page 61) : 

"It is often said that Protestantism, in its earlier days, perse- 
cuted because it had inherited something of the principles of Rome, 
but that persecution was entirely uncongenial with its character, 
and was therefore in course of time abandoned. In a certain sense 
this is undoubtedly true. Protestantism received the doctrine of 
persecution from Rome, just as it received the Athanasian creed, 
or any other portion of its dogmatic teaching. The doctrine of 
private judgment is inconsistent with persecution, just as it is 
inconsistent with the doctrine of exclusive salvation, and with the 
universal practice of all sections of early Protestants in its dealing 
with error. 

7 



Superior Court of Cincinnati. 



Minor et al. -v. Board of Education of Cincinnati et al. 



"If man is bound to form his opinions by his private judg- 
ment, if the exercise of private judgment is both a duty and a right, 
it is absurd to prescribe beforehand the conclusion to which he 
must arrive, to brand honest error as criminal, and to denounce the 
spirit of impartiality and of skepticism as offensive to the Deity. 
This is what almost all the Protestant leaders did in the sixteenth 
and seventeenth centuries, and what a very large proportion of 
them still do, and it was out of this conception of the guilt of 
error that persecution arose. Nothing can be more erroneous 
than to represent it as merely a weapon which was employed in a 
moment of conflict, or as the outburst of a natural indignation, or 
as the unreasoning observance of an old tradition. Persecution 
among the early Protestants was a distinct and definite doctrine, 
digested into elaborate treatises, indissolubly connected with a large 
portion of the received theology, developed by the most enlightened 
and far-seeing theologians, and enforced against the most inoffensive 
as against the most formidable sects. It was the doctrine of the 
palmiest days of Protestantism. It was taught by those who are 
justly esteemed the greatest of its leaders. 

" It was manifested most clearly in those classes which were 
most deeply imbued with its dogmatic teaching. The Episcopalians 
generally justified it by appealing to St. Augustine, and Calvin and 
the Scotch Puritans by appealing to the Old Testament ; but in 
both cases the dominating and controlling cause was the belief in 
exclusive salvation and in the guilt of error ; and in all countries 
the first dawning of tolerance represents the rise of that rationalistic 
spirit which regards doctrines simply as the vehicles of moral senti- 
ments, and which, while it greatly diminishes their value, simplifies 
their character and lessens their number." 

One more passage in the same connection (page 50) : 

"As late as 1690 a synod was held at Amsterdam, consisting 
partly of Dutch and partly of French and English ministers, who 
were driven to Holland by persecution, and in that synod the doc- 
trine that the magistrate has no right to crush heresy and idolatry 
by the civil power, was unanimously pronounced to be false, scan- 
dalous, and pernicious. When Descartes went to Holland, the 
Reformed clergy directed against him all the force of their ani- 
mosity, and the accusation by which they endeavored to stir up the 
civil power against the author of the most sublime of all modern 
proofs of the existence of the Deity was Atheism. The right of 
the civil magistrate to punish heresy was maintained by the Hel- 
vetic, Scottish, Belgic, and Saxon confessions. Luther, in reply to 
Philip of Hesse, distinctly asserted it. Calvin, Beza, and Jurieu, 



Argument of J. B. St alio. 87 

Minor et al. -v. Board of Education of Cincinnati et al. 

all wrote books on the lawfulness of persecution. Knox, appeal- 
ing to the Old Testament, declared that those who were guilty of 
idolatry, might justly be put to death. Cranmer and Ridley, as 
.well as four or five other bishops, formed the commission, in the 
reign of Edward VI, for trying Anabaptists, and if we may believe 
Fox, it was only by the long and earnest solicitation of Cranmer 
that Edward consented to sign the warrant that consigned Jean 
Bocher to the flames. The only two exceptions to this spirit 
among the leaders of the Reformation seem to have been Zwinglius 
and Socinus. The first was always averse to persecution ; the 
second was so distinctly the apostle of toleration that this was long 
regarded as one of the peculiar doctrines of his sect." 

It is needless to quote further. Every intelligent student of 
history knows that Christianity, as the architect of stages, or mother 
of civilizations, has never, during the whole period of its ascend- 
ancy and vigor, either practiced or taught anything but despotism ; 
that it has promoted the cause of freedom only by the violence 
of its attempts to repress it, which roused the irrepressible spirit 
of manly independence. I have not the time to delineate the 
history of Christianity — Protestant Christianity — from the pristine 
days of the Reformation to the present age so as to make it evident 
that its intolerance has invariably found its measure in the extent 
of its power ; the literature and legislation of Europe during the 
last three centuries afford overwhelming proof of the fact, that the 
seeming alliance between freedom and Christianity in some cases 
was merely an accident attributable to other causes. Christian 
sects and denominations have been tolerant at times — when they 
were in the minority ; but as soon as the temporal power was 
within their grasp, they did not hesitate a moment to wield it so as 
to crush out the spirit of liberty. Early Christian writers, such as 
Lactantius, preached toleration — under the Roman emperors ; a 
few Puritan roundheads advocated freedom of conscience — under 
Charles I, before his head rolled in the dust at White Hall ; even 
Anglicans proclaimed the rights of independent belief — during the 
supremacy of the Puritans in England, as Calvert and Baltimore 
established religious freedom in Maryland when they were fugi- 
tives from the persecutions of their native land, where Englishmen 
were " hanged, boweled, and quartered," for saying a mass, or 
repeating the Lord's prayer without the ascription. When you 



88 Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et al. 

hold up John Milton's immortal defense of the rights of conscience, 
in his Areopagitica to an Anglican churchman, he tells you that 
there is in the literature of his church a defense equally noble, the 
Liberty of Prophesying, by Jeremy Taylor. But it is a sad fact 
that this book was written while Taylor was an exile in Wales,, 
after the dethronement and decapitation of Charles I, and before 
the Restoration, and that he recanted his doctrines when Charles 
II made him an Irish bishop. " If Jeremy Taylor," says Mr. 
Coleridge {Notes on English Divines, i, 209), " had not in effect 
retracted after the Restoration — if he had not, as soon as the 
Church had gained power, most basely disclaimed and disavowed 
the principle of toleration, and apologized for the publication by 
declaring it to have been a ruse de guerre, currying pardon for his 
past liberalism by charging, and most probably slandering, himself 
with the guilt of falsehood, treachery, and hypocrisy, his character 
as a man would have been almost stainless." 

"But," my friends on the other side will interject, "you are 
speaking of the history of Christianity in Europe ; we point to the 
history of Protestant, liberal Christianity in this country." Alas ! 
this American Protestant Christianity has not been recreant to the 
teachings and practices of its European precursors. All honor to 
the Puritans ! all honor to the earnestness of their belief! all honor 
to the virtue and purity of their lives ! They came, victims of 
the persecutions of the established church of England, but they 
lost not a moment in establishing the equally intolerant church of 
puritanism. Need I appeal to history, to cite the pages of Ban- 
croft or Hildreth, or quote from the New England Tragedies of 
Longfellow, to show what freedom — religious and civil freedom — 
was in Puritan times ? * 

" It was," says Prof. Gammell, in his Life of Roger Williams, 
p. 14, "to escape oppression for themselves, not to secure the boon 
of freedom to others ; to carry into practice their own views of 
Christian worship, and their own doctrines of civil liberty, not to 
open a temple for the disciples of every faith and the adherents of 
every creed, that they had braved the ocean and the wilderness, 
and begun to plant their civil and religious institutions beneath these 
unpropitious skies. To secure the accomplishment of this object, 
the dearest which their hearts could cherish, all their legislation was 
designed, and all the arrangements of their society were framed. 



Argument of J. B. St alio. 89 

Minor et al. <v. Board of Education of Cincinnati et a/. 

" It was in accordance with this that they reserved to them- 
selves the right of admitting only whom they pleased as freemen 
of the colony ; and within a little more than a year after their 
arrival, they 'ordered and agreed that, for time to come, no man 
should be admitted to the freedom of the body politic but such as 
are members of some of the churches within the limits of the same.' 

" It was the aspiration of the Puritans to form a Christian repub- 
lic after the model of the Jewish theocracy, in which the laws of 
Moses should constitute the rules of civil life. Their system, thus 
educed from the highest sources of authority, tolerated no contra- 
diction and allowed of no dissent. The mandates of public senti- 
ment, not less than the enactments of the General Court, in the 
infant colony, were as stern and unyielding as had been the statutes 
of uniformity, from whose tyrannical operation they had fled when 
they embarked for the shores of the new world. 

" Wrapped in their singular and somewhat original social 
system, there lay the germs both of immense good and immense 
£vil ; of a moral energy that was to bless the world by the results 
it has produced, and of dissensions that were to rend their youthful 
republic, and kindle the fires of intolerance and fanaticism even 
upon the spots most sacred to freedom." 

I will not stop to refer to the legislation of the Colonies — to 
the legislation, not only of the New England Puritan colonies, 
but of the colonies settled by Christians of various Protestant 
denominations, to make it appear that the Christian element in the 
civilization of our country was not the progenitor of that " Chris- 
tian statesmanship" to which my friend Mr. Ramsay so confidently 
attributes the freedom of our institutions. It is sufficient for my 
purpose to point to the constitutions of the several colonies, in 
force at the time of the American Revolution, in which the Chris- 
tian spirit of our fathers is unmistakably reflected. Hear what Mr.. 
Hildreth says in his History of the United States, (vol. iii, 1st 
series, p. 382) : 

' " The provisions of these early constitutions/' writes Mr. 
Hildreth, "on the subject of religion, betrayed a curious struggle 
between ancient bigotry and growing liberality. On the eve of 
the Revolution, Congregationalism still continued the established 
religion in Massachusetts, New Hampshire and Connecticut. The 
Church of England enjoyed a similar civil support in all the south- 
ern colonies, and partially so in New York and New Jersey. It 



90 Superior Court of Cincinnati. 

Minor et al. •v. Board of Education of Cincinnati et al. 

was only in Rhode Island, Pennsylvania and Delaware that the 
equality of all Protestant sects had been acknowledged— an 
equality in the two latter colonies extended also to the Catholic 
religion, the public exercise of which was illegal in most or all the 
others, Catholic priests being liable, in Massachusetts and New 
York, to perpetual imprisonment, or even death. 

"The Constitution of Massachusetts seemed to guarantee 
entire freedom of religious opinions and the equality of all sects; 
yet, the Legislature was expressly authorized and implicitly required 
to provide for the support of ministers, and to compel attendance 
on their services — a clause against which the people of Boston pro- 
tested and struggled in vain. 

"The Legislature also took upon itself to subject to heavy pen- 
alties any who might question received, notions as to the nature, 
attributes and functions of the Deity, or the divine inspiration of 
any book of the Old or New Testament ; reviving, in fact, the old 
colonial laws against blasphemy. 

" Similar laws remained in force in Connecticut, and wer»e 
re-enacted in New Hampshire. Favored by the Legislature, and 
still more so by the Courts, Congregationalism continued to enjoy 
in these three States the prerogatives of an established church, and 
to be supported by taxes from which it was not easy for dissenters 
to escape, nor possible except by contributing to the support of 
some other church on which they regularly attended. The minis- 
ters once chosen held their places for life, and had a legal claim for 
their stipulated salaries unless dismissed for causes deemed sufficient 
by a council mutually chosen from among the ministers and mem- 
bers of the neighboring churches. 

"The Church of England, the majority of whose members 
were loyalists, lost by the Revolution the establishment it had pos- 
sessed in the southern colonies, and the official countenance and 
the privileges it had enjoyed in New York and New Jersey. But it 
retained its parsonages, glebe lands and other endowments which^in 
some of the States, and especially in the city of New York, were 
by no means inconsiderable. 

" By the second Constitution of South Carolina the c Christian 
Protestant religion' was declared to be the established religion of 
that State. 

"All persons acknowledging one God and a future state of 
rewards and punishments were to be freely tolerated ; if, in addi- 
tion, they held Christianity to be the true religion, and the Old and 
New Testaments to be inspired, they might form churches of their 
own, entitled to be admitted as a part of the establishment. The 
election of their own ministers was secured to all the churches, 



Argument of J. B. St alio, 91 

Minor et al. -v. Board of Education of Cincinnati et al. 

which were to be entirely supported out of their own funds and the 
voluntary contributions of their members. 

" The Constitution of Maryland contained an authority to the 
Assembly to levy a 'general and equal tax' for the support of the 
Christian religion, to be applied to the maintenance of such minis- 
ister as the tax-payer should designate, or, if he preferred it, to the 
support of the poor ; but no attempt was ever made by the Mary- 
land Assembly to exercise the authority thus vested in it. 

" No mention was made of the subject of .religion in the Consti- 
tution of Virginia, but the question came up in the first Assembly. 

" By the influx of Scotch-Irish Presbyterians and other dissent- 
ers, especially Baptists, into the upper counties, the Episcopalians 
had become a minority of the people. But they still had a majority 
in the Assembly, and it was only after warm debates that JefFerson 
and George Mason procured the passage of a law repealing all the 
old disabling acts, legalizing all modes of worship, releasing dis- 
senters from parish rates, and suspending their collection until the 
next session; a suspension made perpetual in 1779, and the more 
readily, as most of the clergymen of the Church of England were 
tories. 

" By the Religious Freedom act of 1785 all parish rates were 
abolished and all religious tests abrogated. This act, of which the 
passage was procured by the earnest efforts of JefFerson and Madi- 
son, seconded by the Presbyterians, Baptists and other dissenters 
from the late established church, seemed to them the more imper- 
atively called for in consequence of an attempt the year before, 
supported by Washington and Henry, and nearly successful, to pass 
a law in conformity to the ecclesiastical system of New England, 
compelling all to contribute to the support of some minister. 

" By the Constitutions of New York, Delaware and Maryland, 
priests or ministers of any religion were disqualified to hold any 
political office. In Georgia they could not be members of Assem- 
blies. All gifts to pious uses were absolutely prohibited by ths 
Constitution of Maryland, except grants of land not exceeding two 
acres each, as sites for churches and churchyards. 

" In several of the States religious tests were still kept up, and 
they were even to be found in some constitutions which, in other 
respects, were among the most liberal. The old prejudice against 
the Catholic religion could not so easily be got rid of. In New 
Hampshire, New jersey, North Carolina, South Carolina and 
Georgia the chief officers of State were required to be Protest- 
ants. 

" In Massachusetts and Maryland all office holders must declare 
their belief in the Christian religion ; in South Carolina they must 
also believe in a future state of rewards and punishments; in North 



9 2 Superior Court of Cincinnati. 

Minor et ah -v. Board of Education of Cincinnati et al. 

Carolina and Pennsylvania they were required to acknowledge the 
inspiration of the Old and New Testaments, and in Delaware to 
believe in the doctrine of the Trinity. 

" Though somewhat softened from the harshness of former 
times, religious bigotry and intolerance were by no means extinct,, 
The French alliance had, however, a powerful effect in diminishing 
the deep-seated prejudices against Catholicism, and Rhode Island 
presently set an example of liberality in this particular by repealing 
the law, so contrary to the spirit of her charter, by which Catho- 
lics were prohibited from becoming voters. The old colonial laws, 
for the observation of Sunday, continued in force in all the 
States. 

" Only the Constitutions of Pennsylvania, North Carolina, Mas- 
sachusetts, Georgia and the second one of New Hampshire, made 
any mention of the all-important subject of education, and except in 
Massachusetts and New Hampshire the clauses on that subject, by 
which the Legislature were required to establish schools for general 
instruction, remained, in fact, a dead letter." 

In view of the state of facts thus exhibited I think I have the 
right to protest against the assertion of my friend that the freedom 
of our institutions is the outgrowth of Christianity — even of Amer- 
ican Protestant Christianity. This does not, of course, constrain me 
to become the champion of the counter-proposition held in so much 
horror by my friend, that " the charters of our liberties are the 
charters of infidelity." It is one of the lessons of history, however, 
that when mankind during the last fifteen hundred years, has made 
any decided progress toward civil or religious freedom, the epoch is 
invariably marked by inroads upon Christianity by non-Christian 
influences. The age of the Reformation was also the age of the 
Humanists, the age of Reuchlin and his compeers, who renewed 
the acquaintance of Europe with the letter and spirit of Greek and 
Roman literature; it was, moreover, the age of those independent 
thinkers who first 'dared to look beyond the Bible and the text-books 
of theology into the books of nature and history. The epoch of 
our revolution was the epoch of French and English skepticism, 
the effluence of whose spirit pervaded the air of the colonies no 
fess than the atmosphere of Europe. When my friend proclaims 
indignantly that the charter of our liberties " is not the work of 
infidel hands" I can not refrain from reminding him that the 
Declaration of Independence was written by Thomas Jefferson, 



Argument of J. B, Stalk. 93 

Minor et al •z/. Board of Education of Cincinnati et al. 

whom he, himself, denounced as an infidel, in terms as bitter as 
is consistent with his Christian charity, that the " pious old heathen," 
Benjamin Franklin, helped him, and that the fathers of the Revolu- 
tion read the " Rights of Man " of " infidel " Thomas Paine. And 
I beg leave further to remind him that the men who assembled in 
Philadelphia to frame our Constitution were, many of them, imbued 
with the spirit of free thought then prevalent. I am not without 
apprehension that this will be found to be true, to a certain extent, 
of George Washington — clarum et venerabile nomen — who presided in 
that Convention ; that when you turn to the reliable accounts of 
his life, and not to the accounts of the rhetoricians, who have seen 
fit to meddle with it, the suspicion will arise that he would hardly 
have subscribed to any of the dogmatic creeds of the day, though 
in the noblest ethical sense of the term, no man had a better right 
than he to call himself a Christian. 

'Judge Storer. He was a member of the Episcopal Church. 

Judge Stallo. I know it ; but your Honor also knows what he 
is reported to have said to the quarrelsome wardens of his church. 
If the traditions of the day do not do him great injustice it was 
fortunate for him that our laws against blasphemy, to which my 
friend referred, were not in force in Virginia. 

Judge Storer. There is no doubt of that. 

Judge Stallo. Assuredly not; and I do not think it is the 
greatest of crimes now and then to let off a truth ore rotunda. 

There is a curious illustration of the spirit which pervaded the 
Constitutional Convention in an incident recorded by Mr. Madi- 
son. I find it in Elliott's abbreviation of the Madison Papers — 
(Elliott's Debates, v. 254). It seems that there was a time in the 
deliberations of the Convention when Dr. Franklin feared lest 
its labors should not be brought to a successful close, and proposed — 
with what degree of sincerity I do not undertake to say — to call in 
the clergymen of Philadelphia and request them to preface the dis- 
cussions with prayer. Mr. Sherman seconded the motion, but Mr. 
Hamilton and others expressed doubts as to the propriety of the 
measure. And I am sorry to be obliged to say that the resolution 
was tabled upon the remark of Mr. Williamson, that " the true 
cause of the omission (to have prayers said) could not be mistaken. 
The Convention had no funds''' - And no prayer was said at any time 



94 Superior Court of Cincinnati. 

Minor et. al. -v. Board of Education of Cincinnati et. ai. 

before, during or after the deliberations of the Convention, and I 
may add that the name of God does not occur anywhere in that 
charter of our liberties except in the formal date of the signatures. 
Our Jacobin friend, Mr. Groesbeck, was not there to legislate the 
Lord into existence by expressing " gratitude to Almighty God for 
our freedom," after the manner of his predecessors of the first 
French revolution, who prided themselves in alternately establish- 
ing and annulling the existence of God by their decrees. In this 
connexion it is worthy of note that the customary conclusion " so 
help me God " is omitted from the formula of the oath, which the 
Constitution prescribes the President to take. All this certainly 
does not prove that the Constitution is a "monument of infidel- 
ity ;" it only proves that its framers understood civil government 
to be a purely secular institution, and to have no direct concern 
with things spiritual. It was in obedience to this conviction that 
Thomas Jefferson, while he was President, persistently refused to 
proclaim days of thanksgiving and prayer, and that James Madison 
even hesitated when called upon to sign a bill for the incorporation 
of a church. 

" Fuit hcec sapientia quondam* 
Publica privatis secernere ; sacra profanis" 

And this brings me to the great fundamental proposition of our 
defense, which most effectually disposes of the claim of the plain- 
tiffs that Christianity is part of the law of the state — to the propo- 
sition that, since the establishment of our republican liberty, the 
divorce of the State from the Church, of civil government from 
religion, is not merely a divorce a mensa et tboro, as Judge Story and 
some New York and Pennsylvania judges have thought, but a 
divorce a vinculo matri?nonii. But, before T proceed to make a few 
observations upon this all-important head, permit me to say another 
word in the line of discussion which I have pursued during the last 
hour. 

I deny, not only that Christianity is the law of the State, and 
that the freedom of our institutions is grounded in Christian civil- 
ization, but I deny, also, that our modern European and American 
civilization can in any just sense be called Christian. By the 



Argument of J, B. St alio. g$ 

Minor et al. v. Board of .Education of Cincinnati et al. 

term civilization we designate the materials and forces of the 
physical, intellectual, and moral culture of a people. Now, in the 
first place, the intellectual possessions which make up the stock of 
our culture, and their corresponding material possessions, are not 
only not the gains and emoluments of Christianity, but have been 
acquired in spite of its resistance and recalcitration. It is not 
Christianity which has expanded our mental and physical horizon 
to coextension with spatial infinity, which has revealed to us the 
laws according to which the stellar, planetary, and satellitic orbs 
form or develop themselves in the ethereal expanse, and in obe- 
dience to which they rotate and revolve, under the invisible guid- 
ance of immutable attraction, in their perennial courses ; it is not 
Christianity which has unveiled the mysteries of our planetary his- 
tory, or armed us with the power by the aid of which we subject 
the elements to our dominion. Copernicus dedicated his immortal 
book to a pope, but a pope sealed it to the eyes of all faithful 
believers ; and his inquisitors interposed the walls of a prison 
between the heavens and Galileo, because he had dared to look 
into their depths through a telescope, and to open his mind to the 
truth of the heliocentric theory. Nor was it the pope or the 
Catholic church alone who sought to extinguish the dawning light 
of the new era, or to obstruct the vision of awakening humanity. 
Luther and Melanchthon denounced the Copernican system as 
fiercely as the inquisitors of Rome ; and John Kepler, the discov- 
erer of the laws of which Newton's Principla are but the mathe- 
matical verification, had to turn his back upon a Protestant univer- 
sity — his alma mater — because of his heliocentric belief, and to 
seek employment as a tutor in a Catholic Austrian college. There 
is hardly one of the eminent investigators to whose labors we owe 
the sciences of astronomy, physics, chemistry, geology, physiology, 
etc., who has not been under the ban of the churches and pro- 
scribed by the monopolists of salvation. When in the lapse of 
ages, after the first centuries of the Christian era, has Christianity- 
baptized or stood sponsor to any of the new truths which were 
born into the world to redeem it from a part of its miseries and 
woes, or when has it welcomed them with a benediction ? When- 
ever, of late as of yore, the precursory glimmer of an unwonted 



Superior Court of Cincinnati. 



Minor et al. v. Board of Education of Cincinnati et al. 



light has brightened the skies, the surest and readiest way to dis- 
cover its source has been to look in the direction in which the 
pope and his church have driven their latest anathema, or a Prot- 
estant ecclesiastic has sent his loudest curse. At this very moment 
Europe is in a roar from the discharge of ecclesiastical artillery at 
the zoologists and physiologists who seek to refer the evolution 
of organic beings to the same immutable laws which preside over 
the genesis of all the phenomena of this universe. 

Judge Storer. Do you allude to the man who thinks that 
our ancestry runs into the animal creation ? 

Judge Stallo. I allude to the followers of Charles Darwin, 
who has formulated (and, I think, imperfectly formulated) the doc- 
trine that man, too, was not placed miraculously on the highest 
round in the ladder of organic progression, but in some way had to 
scale that ladder, step by step. 

Our planet has not described a quadrant of its annual orbit since 
the day, when its hills glowed with bonfires and its valleys resounded 
with festive clamor in centennial commemoration of the natal hour 
of a great and good man, who, seeing at a glance, what had dawned 
upon the ages before him, and resuming in one thought the medi- 
tations of centuries, proclaimed, that in the lines, which are the true 
graphic representations of the laws of this Universe, is written the 
word, which he adopted as the title of the noblest book of our cen- 
tury : the word signifying immutable order and indelible beauty. 
It was the natal day of Alexander Hwmboldt. Whoever wished to 
find the places, which were dark, and to see the men who were 
silent and gloomy, on that day, had but to look at our churches and 
the persons who entered there. I am proud to be able to say, for 
the honor of my clients, the Board of Education, that among those 
whose hearts were glad on the 14th of September, to whom Hum- 
boldt's birthday was a holiday, were the boys and girls of the Com- 
mon Schools of Cincinnati. 

Christianity does not, in any of the brilliant constellations 
which appear in the firmament of our modern culture, read the 
words: u In hoc signo vinces ; " and it calls no light blessed which 
promises to dispel the mystic haze of former days. Nor does 
it vouchsafe its benignity to the deeds of the great benefactors 



Argument of J. B. Stalk. gj 

Minor ct al. -v. Board of Education of Cincinnati et al. 

of our times, who make their knowledge and skill the common 
property of the age. The instances are rare, indeed, where it 
has hallowed the vigils and toils of genius in its endeavor to 
devise new engines for the lightening of human labor or the 
easing of human poverty. It is not to Christianity that we owe 
the steam engine, or the telegraph, or the spectroscope, or any of 
the other appliances by means of which we shorten the roads to 
knowledge or to wealth. 

"But," it is whispered, "the ethical part, at least, of our cul- 
ture is incontestably a contribution of Christianity. We are a 
moral people, so far as we are a Christian people. It was Chris- 
tianity which planted the dicot)dedonous seed of love of God and 
love of man, and from this double germ has sprung the noble tree 
whose fruits of benevolence and mercv have made the word 
'Christian' a term descriptive of everything generous and lofty in 
our moral nature." 

Far be it from me to deny or disparage the inestimable bless- 
ings which Christianity has conferred upon man (whether you 
regard him as having fallen from primeval grace or as struggling 
up from primeval barbarity), by bringibg him the gospel of love and 
charity and justice. Far be it from me to refuse my homage to 
the spirit which animates layman or priest, when he visits the sick, 
or clothes the naked, or feeds the hungry, or shelters the wander- 
ing stranger, or consoles the dying sinner. I cheerfully admit that 
sublimer words, or words of greater import, can not be found in 
the religious or other books of any people, than the simple words 
of Christ, which, according to Him. are- all the law: "Whatever 
ye would that men shall do to you, do ye even so to them -," or, 
" Love thy neighbor as thyself." 

But it must not be forgotten, that the maxims embodied in 
these words did not originate with Christ or Christianity ; that they 
are as old as the traditions of the Aryan and Semitic families, or 
indeed, as the traditions of the human race. Even the Bible con- 
tains evidence of this ; for we read in the Old Testament, in 
Micah (vi, 8) : " And what does the Lord require of thee, but 
to do justly and to love mercy, and to walk humbly with thy 
God." Nor must it be overlooked, that the influence of Christi- 
anity upon morals has not consisted solely in the inculcation and 



9 8 Superior Court of Cincinnati. 

Minor ct al. -v. Board of Education of Cincinnati et al. 

enforcement of the injunctions of Christ, but in a large and per- 
haps even greater degree in the inevitable effect of the methods 
and sanctions resorted to for this purpose. Christianity, taught 
men to love their neighbors, but also to regard them as utterly- 
lost, if they could not or would not believe in its doctrinal tenets ; 
it taught them to do unto others as they would be done by ; but it 
also burned the heretic at the stake, and led Christian hosts 
against peaceful nations to exterminate them, if they could not 
exterminate their beliefs. Christianity incrusted the simple princi- 
ples of charity and justice with innumerable layers of dogmatic 
assertion, and held up devout acquiescence in these as conditions of 
salvation more essential than conformity of life to the eternal prin- 
ciples of right. Of what avail is it, in the eyes of most Chris- 
tians, to lead a virtuous and upright life, if you do not believe 
in the Trinity or justification by faith ? 

In one sense Christianity, though not, as is sometimes claimed, 
the only source from which the living waters of virtue and morality 
flow, has nevertheless sweetened and purified these waters ; but in 
another sense it has tainted and polluted them. And I give 
expression to an obvious truth, when I say, that humanity has, 
in some measure, paid the debt of gratitude which it owes to 
Christianity for refining and ennobling it, by reacting in its turn 
with its progress — I mean that progress which is due to agencies in 
which Christianity has no part — upon Christianity, emancipating 
its ethics from the shackles of dogmatism. This is so beautifully 
expressed by Mr. Lecky, whom I have already laid so largely under 
contribution, that I can not forbear to quote him again {History of 
Rationalism^ i, 200). 

" If we were to judge the present position of Christianity by 
the tests of ecclesiastical history, if we were to measure it by the 
orthodox zeal of the great doctors of the past, we might well 
look upon its prospects with the deepest despondency and alarm. 
The spirit of the Fathers has incontestably faded. The days of 
Athanasius and Augustine have passed away — never to return. 
The whole course and tendency of thought is flowing in another 
direction. The controversies of bygone centuries ring with a 
strange hollowness on the ear. But if, turning from ecclesiastical 
historians, we apply the exclusively moral tests which the New 



Argument of J. B. St alio. 99 

Minor ct al v. Board of Education of Cincinnati et al. 

Testament so invariably and so emphatically enforces ; if we ask 
whether Christianity has ceased to produce the living fruits of love 
and charity and zeal for truth, the conclusion we shall arrive at 
would be very different. If it be true Christianity to dive with a 
passionate charity into the dark recesses of misery and of vice, to 
irrigate every quarter of the earth with the fertilizing stream of an 
almost boundless benevolence, and to include all the sections of 
humanity in the circle of an intense and efficacious sympathy ; if it 
be true Christianity to destroy or weaken the barriers which had 
separated class from class and nation from nation, to free war from 
its harshest elements, and to make a consciousness of essential 
equality, and of a genuine fraternity, dominate over all accidental 
differences ; if it be, above all, true Christianity to cultivate a love 
of truth for its own sake, a spirit of candor and of tolerance 
toward those with whom we differ ; if these be the marks of a 
true and healthy Christianity, then' never since the days of the 
Apostles has it been so vigorous as at present, and the decline of dog- 
matic systems and of clerical influence has been a measure, if not a cause, 
of its advance.'" 

Having proceeded to this length, I have no hesitation in adding, 
that the standards of morality are by no means all of Christian 
erection. Indeed the proclamation of a truth or the distinct affirm- 
ance of an ethical principle by the founders of a philosophical or 
religious system never precedes but always succeeds the recognition 
of that truth or the appreciation of that principle by society ; it is 
but a summing up and formulation of the outward or inward expe- 
riences of mankind. "It is only in the dusk, when the day has 
passed," says a German thinker, " that the owl of Minerva begins 
its flight." 

That the origin of our system of ethics can not be referred to 
the writings held sacred by Christians and that no complete code 
of morality can be eliminated from its contents, has been often 
shown. Let me read a few sentences from the pen of a writer, 
with all of whose opinions I do not agree, but whose conclusions 
are of as much weight, as those of any thinker of the age. Mr. 
John Stuart Mill in his Essay on Liberty, page 94 (Boston edition), 
says : 

" Before pronouncing what Christian morality is or is not, it 
would be desirable to decide what is meant by Christian morality. If 
it means the morality of the New Testament, I wonder that any one 



ioo Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

who derives his knowledge of this from the book itself, can sup- 
pose that it was announced, or intended, as a complete doctrine of 
morals. The Gospel always refers to a pre-existing morality, and 
confines its precepts to the particulars in which that morality was 
to be corrected, or superseded by a wider and higher, expressing 
itself, moreover, in terms most general, often impossible to be 
interpreted literally, and possessing rather the impressiveness of 
poetry or eloquence than the precision of legislation. To extract 
from it a body of ethical doctrine has never been possible without 
eking it out from the Old Testament — that is, from a system elab- 
orate, indeed, but in many respects barbarous, and intended only for 
a barbarous people. St. Paul, a declared enemy to this Judaical 
mode of interpreting the doctrine and filling up the scheme of 
his Master, equally assumes a pre-existing morality, namely : That 
of the Greeks and Romans; and his advice to Christians is in a 
great measure a system of accommodation to that, even to the 
I extent of giving an apparent sanction to slavery. What is called 
Christian, but should rather be termed theological, morality, was 
not the work of Christ or the Apostles, but is of much later origin, 
having been gradually built up by the Catholic Church of the first 
five centuries, and though not implicitly adopted by moderns and 
Protestants, has been much less modified by them than might have 
been expected. For the most part, indeed, they have contented 
themselves with cutting off the additions which had been made to 
it in the middle ages, each sect supplying the place by fresh addi- 
tions, adapted to its own character and tendencies. That mankind 
owe a great debt to this morality, and to its early teachers, I should 
be the last person to deny ; but I do not scruple to say of it, that 
it is, in many important points, incomplete and one-sided, and that 
unless ideas and feelings not sanctioned by it had contributed to the 
formation of European life and character, human affairs would have 
been in a worse condition than they now are. Christian morality 
(so-called) has all the characters of a reaction. It is, in great part, 
a protest against Paganism. Its ideal is negative rather than posi- 
tive ; passive rather than active ; innocence rather than nobleness ; 
abstinence from evil, rather than energetic pursuit of good ; in its 
precepts, as has been well said, "thou shalt not" predominates 
unduly over " thou shalt." In its horror of sensuality, it made an 
idol of asceticism, which has been gradually compromised away 
'nto one of legality. It holds out the hope of. Heaven and the 
threat of hell, as the appointed and appropriate motives to a virtu- 
ous life ; in this, falling far below the best of the ancients, and 
doing what lies in it to give to human morality an essentially selfish 
character, by disconnecting each man's feelings of duty from the 



Argument of J. B. St alio. 101 

» Minor et al. v. Board of Education of Cincinnati et al. 

interest of his fellow-creatures, except so far as a self-interested 
inducement is offered to him for consulting them. * * 

* And while, in the morality of the best 

Pagan nations, duty to the State holds even a disproportionate 
place, infringing on the just liberty of the individual ; in purely 
Christian ethics, that grand department of duty is scarcely noticed 
or acknowledged. It is in the Koran, not the New Testament, 
that we read the maxim, "A ruler who appoints any man to an 
office, when there is in his dominion another man better qualified 
for it, sins against God and against the State." What little recog- 
nition the idea of obligation to the public obtains in modern mora- 
lly, is derived from Greek and Roman sources, not from Christian; 
as, even in the morality of private life, whatever exists of magna- 
nimity, high-mindedness, personal dignity, even the sense of honor, 
is derived from the purelv human, not the religious part of our edu- 
cation, and never could have grown out of a standard of ethics, in 
which the only worth, professedly recognized, is thai of obedience ." 

There is a still graver error, however, than that involved in 
the claim, that a complete system of ethics sufficient for all time 
can be erected upon the foundation laid in the Bible. I allude to 
the common assumption, according to which sound morality can 
thrive only as an efflorescence of dogmatic belief, and can not be 
sustained except by the props of a theological system. It is quite 
possible to be honest without a belief in the immaculate con- 
ception, to be charitable without acquiescence in the doctrine of 
eternal damnation, to be just without assent to the tenet of justifiy 
cation by faith, and generally to be virtuous without adherence to 
the notion of vicarious atonement. More than all this: the stamina 
of our moral nature rest upon a far surer foundation, than the incul- 
cation of a few precepts by an external authority. The ethics of 
human society are a part of the grand order of the universe, by 
virtue of which it shines in beauty and exuberates with the fruits 
of righteousness and bounty. That order asserts itself, whenever 
the immortal spirit of humanity is not obstructed in its self-revela- 
tion, and the conceits of passing time do not clothe themselves in 
the habiliments of everlasting authority. There is an eternal law, 
according to which industry tends to develop the virtues of fru- 
gality and honesty, the social commerce between men fosters 
charity, mutual forbearance and truthfulness, and the very conflicts 
of society generate fortitude and the sense of honor. It is in this 

1 8 



102 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et ah 

law of the evolution of morals, that we must seek the explanation 
of the consoling fact, which meets us in our daily intercourse with 
our fellow men, that their practices are often better than their pro- 
fessions, and the morals of their lives more exalted, than the morals 
of their creeds. I have many valued friends, in whom the man is 
preferable to the religionist. Take my friend on the other side, for 
example, in whom I cherish not the Christian less, but the man 
more — disrobe him of the panoply of his Christian zeal, and set 
him up before a meeting of Democratic citizens — even of Catholic 
and unbelieving citizens — and I am sure he will speak of the 
infidel Thomas Jefferson with far more charity and respect, than 
he has done here. 

The vigorous evolution of society strengthens the vital forces 
which control that evolution ; and this is the most trustworthy 
safeguard against social perdition. The only true preservative from 
corruption and decay in the moral as in the physical world is 
activity and growth. The only reliable antiseptic is life. The 
untrammeled action of the forces of society sustains its integrity as 
surely, as the unhindered flow of a river preserves the sweetness of 
its waters. " 

I have spent so much time on this part of the discussion, which 
your Honors will perhaps regard as a digression, that I have but a 
few moments left, in which I can attempt to refute what I regard 
as the most fatal error of my friend on the other side : his theory 
of the relation between the State and society. He refers to the 
systems of education prevalent in ancient and modern Europe, and 
seems to deplore the possibility, that our educational system, if the 
action of the Board of Education is upheld, will be an anomaly. 
He betrays no consciousness of the radical difference between the 
theories of the past and the teachings of the present day as to 
the nature and functions of the State. The ancient Romans, for 
instance, regarded the individual and the family — the true units of 
society — as mere integrants, mere segments, mere fractions of the 
State ; and their theory has never lost its hold upon the European 
mind. According to that theory the individual and the family had 
no center of gravity of their own ; they did not revolve on their 
own axis ; their only center of attraction was the State, in which 
all their movements originated. In the light of that theory the 



Argument of J. B. St alio. 103 

Minor et al. -v. Board of Education of Cincinnati et al. 

State was the creator, not the creature of society. It is to this 
doctrine, that we must ascribe the origin of the prejudice still so 
inveterate, that the State is of necessity the artificial founder and 
producer of every thing — of industry and material prosperity no less 
than morality, religion and intelligence. Modern thought has 
reversed these positions of the State and society ; it has begun to 
perceive that the State emerges from and is upheld by society, and 
is therefore subservient to its ends. The true office of the State is 
simply to disembarrass the free interaction of the constituents of 
society; to secure justice and peace; to guard against excess and 
disorder. It is to keep the road clear for the footsteps of society, 
not to show the way ; to regulate its movements, not to inaugurate 
them; to secure co-operation and harmony between the social 
elements, not to generate these elements or their laws of affinity. 
In most cases the State operates as a set of checks and hindrances, 
although it is not universally true, that those governments are 
best which govern least, and although Carlyle's derisive formula: 
" anarchy plus the street constable" is not an exhaustive definition. 
But it is strictly true, that the State can discover no truth, that it 
can kindle no light, that it can create no force, that it can induce 
no energy. The attribution to the State of the faculty to produce 
social energy is as absurd an error as the old delusion, that a 
machine could add to the quantity of its motive force. 

I have said enough on this head to enable me with confidence 
to add : the State can not teach religious truth and can not inculcate 
morality as such. How, indeed, should the State be in a condition 
to teach religious truth ? Where is the organ, where are the 
instrumentalities for its discovery ? Can the State convoke an 
oecumenical council to decide between the disputants now assem- 
bled in this Court ? To whom shall the State apply when it 
wishes to ascertain the fundamental, universal, neutral, achromatic 
truth, which, according to the claim of my friends, it must teach 
the children in the public schools? To your Honors? to me? tc 
my friends on the other side ? I suspect, that if we were to 
address the old question: " ®)uid est Veritas?" to my friend Mr. 
Ramsay, or to my friend Mr. Sage, or to my friend Mr. King, or 
to that distinguished theological taxidermist, the Pontifex Maximus 
of minimal religion, who, of late, has been presaging the destinies 



104 Superior Court of Cincinnati. 

Minor et. al. •v. Board of Education of Cincinnati et. al. 

of our republic from an inspection of the visceral contents of his 
exenterated Christianity, the Reverend Mayo, the answer would 
come back to us in the old anagram of the letters composing the 
words of the question: " Vir qui adest" — that each respondent to 
the inquiry (the exuvial Pontifex standing forth in his most author- 
itative attitude) would hold himself and his opinions up as the 
standard of truth. Where will the State find the true measure for 
so many standards in this age of the unlimited differentiation of 
belief? By what rule of maxima and mimima will it determine 
the least or greatest quantum of religion which it can safely admin- 
ister to Christian and Jew alike ? 

It is by no means a consequence of what I have tried to 
exhibit that the State and society are wholly independent of each 
other, and that the integrity and stability of the one does not presup- 
pose the health of the other. Analogies are always treacherous, 
otherwise I might compare the State to the osseous system in the 
animal organism. There is no doubt that the bony structure would 
decay and become carious if the digestive and respiratory organs 
were not in the normal discharge of their functions; but will you 
conclude that therefore the osseous frame must digest or breathe ? 

I beg your Honors' pardon for having wearied you with this 
discussion, which has taken a wider range, than any of us perhaps 
anticipated. Allow me to add a single word to remove an appre- 
hension which appears to be seriously entertained by my friends on 
the other side. In defending the^action of the School Board it is 
not my design (as it is not the design of any member of the Board 
with whom I have had the opportunity to confer) to destroy the 
Common Schools, the people's colleges in Cincinnati, but it is my 
aim to save and sustain them. It has been charged that some of 
our citizens, who now advocate the exclusion of the Bible from the 
Common Schools, are intent upon a sinister ulterior purpose; that 
the real object of their agitation is the distribution of the school 
fund among the religious sects and denominations. Permit me to 
say that, whenever such a purpose is developed, my feeble voice 
will be lifted in the courts, and before the people, to thwart and 
defeat it. But I want to remove the only fulcrum upon which the 
lever to be used in dismantling the edifice of our public education 
can rest. . 



Argument of J. B. St alio. 105 

Minor el al. t» . Board of Education of Cincinnati ct al. 

I want to be able to speak the truth then, as now, in assuring 
my Catholic fellow-citizens: a Your complaints are groundless; 
the schools are open to all, and there is nothing done or taught in 
them at which the most conscientious Catholic can take offense; 
no sectarian flag floats over the school-house, and no spirit enters 
there but that of peace and good will toward all men and creeds." 
I want to bring the children of Protestants, Catholics, Jews, — yea, 
of unbelievers, — together in the common school-room; and I 
think I can be answerable for the promise I now make to my 
friend, Mr. Ramsay, that none of the consequences he so 
eloquently laments will follow. We propose to pave the road 
from each church and synagogue, and from each dwelling, to the 
school-house, and the same roads will lead from the school-house 
back again to the synagogue and church. We do not mean to 
interfere with any faith or conviction ; we do not intend to throw 
down the spire of any cathedral ; we do not desire to seal up any 
holy book, or to blot out any letter that stands written within it ; 
we do not wish to extinguish the most flickering lamp that sheds 
its light into the human soul, or to drown the feeblest voice which 
speaks the words of religious truth. The spires will point to 
heaven, the unmuffled church bells will speak of God, as before; 
the "free Bible" will have free sway, but in a free State, in free 
churches or religious schools, by the side of free secular schools. 
And I' hope my friend will not regard it as a calamity if the son 
of a Presbyterian or Methodist, after his intercourse with the child 
of a Jew, Catholic, or unbeliever, should turn to the Scriptures 
with the feeling that the truth is broader than the leaves of any 
book; that it is brighter than black ink on brown paper; that its 
voice is more melodious than even the sound of a church bell; and 
that the human conscience may afford light for the reading of 
lessons of duty, which are not written in the alphabets of a Bib- 
lical code, translated into any of the varieties of human speech, 



Argument of George Hoaclly, 

For the Board of Education. 



If Your Honors Please — When this case was reserved for 
hearing in general term and it was agreed that the argument should 
proceed this day, it was suggested by a member of the Court that 
among the questions to be now considered would be that of the 
legal existence of the Board of Education of the city of Cincin- 
nati. My friend who opened the argument for the plaintiffs has 
omitted to refer to this point. I do not choose to follow him, but 
purpose to begin my part of the discussion with its consideration, 
for the suggestion came from the Court, and may be renewed where 
we can not reply. How frequently and often how properly are 
cases here decided upon grounds not'discussed by counsel. 

I do not care to spend much time upon the proposition that 
there is an estoppel against the plaintiffs who have sued the Board 
as a lawfully constituted body, precluding them from denying its 
official existence. I have in my hand the pamphlet reprint of the 
decision of the Supreme Court in the case of The State of Ohio 
against The Cincinnati Gas Light and Coke Company^ the report 
of which will appear in the 18th Ohio State Reports, in which 
it was held that even in quo warranto against a corporation, its cor- 
porate existence can not be questioned or denied, if the writ be 
directed against it by its corporate title. In such cases the question 
becomes one of forfeiture, not of corporate existence. The cita- 
tion of this case is all that is needed to prove that the official char- 
acter of the Board of Education can not here be denied. If a 
plaintiff suing a corporation, if the State seeking to forfeit a charter 
for abuse or non-use, may not say, "Here is no corporation," 



Argument of George Hoadly. 107 

Minor et al. <v. Board of Education of Cincinnati et al. 

neither may those who seek to enjoin the action of corporate offi- 
cers deny their title to such offices. The remedy is in quo war- 
ranto. 

Nor do I care to inquire whether the effect would not be 
decisive against the injunction. Yet, surely, if my clients are not 
lawfully clothed with the powers which the law appears to confer 
upon the Board of Education of Cincinnati, there would seem to 
be no necessity for this remedy. 

It is suggested that the act of 1853, which creates the Board, 
is unconstitutional, because it is a special law conferring corporate 
powers. I am aware that the first section of that act does, in 
terms, confer upon the corporate authorities of the city of Cincin- 
nati, by name, certain powers and duties with reference to the 
matter of education of children within the city. But, your Hon- 
ors, though put in this form, the work of education is, as Judge 
Stallo justly observed, no part of the proper corporate action of the 
city. It is the office of the State, not of municipalities, and when 
a city or village acts, it acts as the representative of the State. 
The powers of education and school government are not conferred 
upon councils, the ordinary legislative assemblies of municipal 
corporations, but upon separate boards. Upon no other principle 
can the levy and distribution of the State school fund be justified. 
Upon no other principle can that otherwise oppressive system of 
taxing by the rule of wealth, and distributing by the rule of num- 
bers, be justified. I do not know how it now is, but years ago, 
when Mr. King was president of the School Board, the matter 
was investigated, and it was found that more than seventy thousand 
dollars were annually collected within the limits of this county, 
and expended in counties like Van Wert, Paulding, and the like, 
where the number of children within the school ages was greater, 
relatively to the taxable value of property, than here. This is 
done because Ohio acts as a State, being, in matters of education, 
a unit, collecting in all counties on the basis of wealth ; expending 
in all counties on the basis of numbers needing education ; a system 
just, if the principle be admitted, but unconstitutional and unjust 
if education be a corporate function. 

Nor do I purpose to do more than merely allude to the sug- 
gestion that even if the function in question be corporate in its 



io8 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

character, it is not "conferred" by the act of 1853, but had been 
previously granted, and was there only defined, explained and sys- 
tematized. For, in studying the case in my office, I began by 
admitting to myself the unconstitutionality of the act of 1853, an< ^ 
I soon discovered that this result, apparently so portentous, is pro- 
ductive of no effect upon the existence or powers of the Board, of 
no effect whatever, not the least, and does, at most, only require it 
to act by another name. I admit that, in this event, the proper 
title of the Board is, "The Board of Trustees and Visitors of 
Common Schools." No other change in the legal positions and 
relations of the parties follows from the discovery that the act of 
1853 ' s a "special law conferring corporate powers," forbidden by 
the Constitution of Ohio. 

If this law be no law, there still stands upon the statute 
book a law differing from it in no material respect, not repealed by 
this law, the ancient law of 1834 — a law which was, if not writ- 
ten, at least urged and prompted by a man now in his grave, who 
was himself of that "peculiar style of irreligion" that has been 
spoken of — a man who would not permit his own daughters to 
enter the school of which they were members until after the con- 
clusion of the morning exercises. I state the fact upon the author- 
ity of his widow. Your Honors need not be told that I refer to 
the author of the common school system of Ohio, the lamented 
Nathan Guilford. 

The act of 1853 ^ oes not P ur P orJ: to repeal the act of 1834. 
Your Honors will find the repealing clause of the act of 1853 
upon the 779th page of Disney's Laws and Ordinances^ edition of 
1866. It does not refer to the act of 1834. 

And why ? Refer to the first section of the municipal cor- 
poration law of May 3, 1852. You find that it repeals "all acts 
now in force for the organization or government of any such 
municipal corporations." (Disney, edition of 1866, p. 62.) And 
such was the character of the act of I 834. It was the charter of 
Cincinnati. This first section of the law of 1852, then, repealed it. 
But not altogether. For by the 109th section of the act of 1852 
(Disney, edition of 1866, p. 108), it was provided that " all special 
acts in relation to any municipal corporation, repealed by the first 
section of this act, shall notwithstanding, so far as the same affects 



Argument of George Hoadly 109 

Minor et al. -u. Board of Education of Cincinnati et al. 

the particular police regulations, or local affairs of any municipal 
corporation in matters not inconsistent with this act, be and remain 
in force, as by-laws and ordinances of the particular municipal 
corporation until altered or repealed by the proper authority 
thereof." 

It will not be pretended that the provisions as to schools con- 
tained in the act of 1834 are inconsistent with any provision of the 
act of 1852. Hence they are saved from the force of the repeal, 
and still govern the subject, if the act of 1853 be laid aside. And 
in the case of Blanchard v. Bissell, 1 1 Ohio State, 96, it is expressly 
decided that the act of May 3, 1852, did not abrogate the school 
systems then existing, nor repeal the special laws creating them in 
the several towns and cities of the State. And the 67th section of 
the general school law of the State (2 Swan & C. 1365), expressly 
withdraws from the grasp and scope of that act all schools estab- 
lished by special laws theretofore passed, which special laws, it pro- 
vides, shall not thereby be "repealed, changed or modified in any 
respect." The Supreme Court, in Blanchard v. Bissell, say that, 
"The Legislature manifestly intended all special and local school 
laws to be left untouched, both by the towns and cities act of 1852, 
and by the general school law of 1853." 

The provisions, then, of the act of 1834 remained as the law 
of the schools of Cincinnati, until the substitution of the act of 
1853. I*" tn ' s substitution be invalid, the act of 1834 remains. 

And now, as to the powers conferred by these two statutes, let 
us compare by reading them together. From the ninth section of 
the act of 1853 (Disney, edition of 1866, p. 775), I read as 
follows: 



" That the said trustees and visitors shall have the superin- 
tendence of all the schools in said city, organized and established 
under this act, and from time to time shall make such regulations 
for the government and instruction of the children therein, as to them 
shall appear proper and expedient. ********* 
* * — and generally, do and perform all matters and things per- 
taining to the duties of their said office, which may be necessary 
and proper to promote the education, morals and good conduct of the 
children instructed in said schools. 

Sec. 10. "That the said trustees and visitors, for the purpose 



no Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et al. 

of better organizing and classifying the schools under their super- 
vision, shall have power to establish and maintain, out of any fund 
under their control, such grades of schools other than those already 
provided for, as may to them seem necessary and expedient, for the 
above-named purposes, and are hereby authorized to cause to be 
taught therein such other studies, in addition to those taught in 
their district schools, and under such regulations as said trustees 
and visitors may, from time to time, prescribe ; provided, however, 
that said funds shall not be appropriated toward the establishment 
and maintenance of such other grades of schools so as in any way 
to impair the efficiency and permanency of the common district 
schools in said city." 

^c >K * % >j< 

Sec. 12. " That the common schools in the several districts 
of the city (and all other grades of schools authorized or estab- 
lished, and maintained in whole or in part from the school fund of 
said city), shall, at all times, be equally free and accessible to all white 
children, not less than six years of age, who may reside in said city, and 
subject only to such regulations for their admission, government and 
instruction as the trustees and visitors may y from time to time, provide" 

* >|< >£ * ;|< >!<>!< * *:£ 

Sec. 14. " There shall be a board of examiners, composed 
of seven members, and at the expiration of the respective terms of 
those now in office the said Board of Trustees and Visitors shall 
appoint, for the term of three years, suitable persons, residents and 
citizens of said city, of competent learning and abilities, as exam- 
iners of said schools and of the qualifications of teachers thereof, 
which examiners, when organized by the election of a president, 
shall constitute and be denominated tl - The Board of Examiners of 
Common Schools in Cincinnati," and all vacancies which may 
occur in said board shall be filled by said trustees and visitors. It 
shall be the duty of said board of examiners to meet at least once 
in every month, examine the qualifications, competency and moral char- 
acter of all persons desirous of becoming teachers and instructors 
in said schools, as well with reference to their methods of instruc- 
tion and mode of government, as literary attainments ; and any four 
members of said board shall have power to grant certificates thereof 
to such persons as in their opinion shall be entitled to receive the 
same, and no person shall be employed and paid directly or indi- 
rectly as teacher or instructor in any of said schools until he or she 
shall have obtained from said board of examiners a certificate of 
qualifications as to his or her competency or moral character'' 1 

By the act of May 4, 1868 (Disney's Laws and Ordinances, 
edition of 1869, d. 163), the title of the " Board of Trustees and 



Argument of George Hoadly. 1 1 1 

Minor et al. <v. Board of Education of Cincinnati et al. 

Visitors of Common Schools" was changed to "Board of Educa- 
tion." 

Refer now, if you please, to the act of 1834, which may be 
found in volume 32 of Ohio Local Laws, p. 256, et seq. : 



"Sec. 31. That for the purpose of more effectually supporting 
common schools in said city, and to secure the benefits and bless- 
ings of an education to all the children therein, it shall be the duty 
of said city council annually to levy or cause to be levied and col- 
lected a tax of one mill on the dollar, in addition to such tax as 
may be levied by or under the authority of the State for that pur- 
pose, upon all the property in said city, valued and appraised, and 
liable and subject to taxation for State and county purposes. * * 

* * * Provided, That said schools in the several districts of said 
city shall at all times be equally free and accessible to all children not less 
than six years old tuho may reside therein, and subject only to such regu- 
lations for their government and instruction as the trustees hereinafter 
mentioned may from time to time prescribe. * * * 

" Sec. 32. That the qualified voters of each ward in said city 
annually shall elecpone [afterwards increased to two] judicious 
and competent person, having the qualifications of a councilman 
for such ward, as a trustee and visitor of common schools in said 
citv, which trustees and visitors, elected as aforesaid, shall consti- 
tute and be denominated " The Board of Trustees and- Visitors of 
Common Schools in Cincinnati,' who shall hold their office for one 
year, and until their successors shall be chosen and qualified, and 
fill all vacancies which may occur in their own body during the 
time for which they shall be elected ; they shall have the general 
superintendence of all the common schools in said city, and from time to 
time make such regulations for the government and instruction of the 
children therein as to them shall appear proper and expedient; they 
shall appoint and employ the teachers and instructors for the same, 
and visit each and every such school as often as once in every 
month ; they shall cause at least one school to be kept in each 
ward for the term of six months in each year, between the fifteenth 
day of March and the fifteenth day of October, by some com- 
petent female teacher, for the instruction of children under twelve 
years of age in reading, spelling, writing, and arithmetic. * * 

* * * * * * And generally do and perform 
all other matters and things pertaining to the duties of their said 
office, which may be necessary and proper to be done to promote 
the education and morals of the children instructed in said schools, 
or which may be required of them by the ordinances of said city, 
not inconsistent with the provisions of this act. 



112 Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et al. 

4C Sec. 34. * * That it shall be the duty of the city 
council to appoint seven persons, residents and citizens of said city, 
of competent learning and abilities as examiners and inspectors of 
said schools, and the qualifications of the teachers thereof, which 
examiners and inspectors shall constitute and be denominated 
'The Board of Examiners and Inspectors of Common Schools in 
Cincinnati,' who shall hold their office for the term of three 
years; and the vacancies which may occur in said board shall be 
filled for the time being by the city council. It shall be the duty 
of said Board of Examiners and Inspectors to examine the quali- 
fications, competency, and moral character of all persons desirous 
of becoming teachers and instructors in said schools, or any of 
them, four of whom can grant certificates thereof to such as, in 
their opinion, may be entitled to receive the same. They shall, 
from time to time, and as often as they may deem proper, strictly 
examine all said schools, the discipline and course of instruction in 
each, the conduct of the several instructors and teachers therein, 
and the progress of improvement of the students and pupils 
thereof; and shall make report of all their proceedings and of all 
matters pertaining to the duties of their said office, as often as once 
in three months, to the city council, and also to the board of 
trustees and visitors, such alterations and improvements in the gov- 
ernment, discipline, and instruction of said schools, and in the 
administration of the affairs of the same, as in their judgment will 
more effectually advance the cause of education and good morals 
therein, and promote the objects contemplated by this act." 

Much is in these laws, your Honors, of education, of dis- 
cipline, of morals; something even of reading, spelling, writing, 
and arithmetic is stated ; not one word of the transcendently 
important topics of religion, piety, worship ! Marvelous is it 
that for schools which, as we are now told, can not, under the 
Constitution, lawfully open their doors unless to begin with Bible 
reading and singing hymns, the law should be silent and entirely 
oblivious of the necessity for this most necessary requirement. 

Such being the Constitution and declared powers of the Board, 
what is now, by this petition for injunction, required of it ? Is 
this a fair case for injunction ? Is it not rather an attempt to give 
to this writ the force of a mandamus ? 

Understand me: I make no technical objection. I wish to be 
understood as meeting my friend, Mr. Ramsey, as fairly as he 
offered to meet me. I do not object that the Court is deprived 



Argument of George Hoadly. 113 

Minor et al. -v. Board of Education of Cincinnati et al. 

of jurisdiction by reason of the fact that the remedy is not by 
injunction in such cases. I do not wish to be understood as object- 
ing that, if your Honors should be of the opinion that there is here 
a case fora court of law, it should be presented by mandamus to 
the Supreme Court, and the injunction is not the remedy. I do 
not wish to be understood as making that objection. I wish dis- 
tinctly to be understood as waiving that as an objection to this 
proceeding. But I do wish to proceed to discuss this precise propo- 
sition for the purpose of submitting to your Honors the question 
what it is that is propounded to this Court by this bill of complaint, 
for the purpose of submitting to your Honors a further argument, 
that this Court is appealed to here not for the purpose of restrain- 
ing anybody, not for the purpose of prohibiting anything, but that 
you may in the form of an injunction, establish and enforce a rule, 
a rule of worship and religious instruction, by this Court to be con- 
structed out of some supposed relation of the State to Christianity, 
or to religion, which rule this Court must, ex necessitate rei, define, 
specify, limit, and, therefore, your Honors are in the singular posi- 
tion in this case, in my judgment, of being appealed to here as 
infallible custodians of truth, who can commit no error, from 
whom is to proceed for the government of the schools of this city 
a rule which shall specify and determine what truths are to be 
taught as truths of religion hereafter in Cincinnati, and what shall 
be the future formula or ritual of religious worship to be observed 
therein. This is just what is asked of your Honors. You are 
thus to be constituted into an ecumenical "council, or into a trinity 
of popes. What is it that has been done that remains to be 
undone ? What is it that your Honors can restrain ? Are your 
Honors to restrain, by your solemn writ of injunction, Mr. Hurlbut 
from running, from his office, outside the building and telling 
these teachers what every one of them has long since known, that 
there is a standing rule of the School Board requiring them to per- 
form certain acts as conditions upon which they hold their offices. 
The old rule is repealed. Your Honors are asked to make a new 
rule. 

The injunction of the Code (sec. 237 ; 2 S. & C. 1012), "is a 
command to refrain from a particular act." "The writ of man- 
damus (Code, sec. 569 ; 2 S. & C. 1124), may be issued to any 



114 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

inferior tribunal, corporation, board or person, to compel the per- 
formance of an act, which the law especially enjoins as a duty 
resulting from an office, trust or station." 

The School Board have passed two resolutions : 

"Resolved, That religious instruction and the reading of religious 
books, including the Holy Bible, are prohibited in the Common 
Schools of Cincinnati, it being the true object and intent of this 
rule to allow the children of the parents of all sects and opinions 
in matters of faith and worship, to enjoy alike the benefit of the 
common school fund. 

u Resolved, That so much of the regulations on the course of 
study and text-books in the intermediate and district schools (p. 
213, Annual Report), as reads as follows : ' The opening exercises in 
every department shall commence by reading a portion of the Bible 
by or under the direction of the teacher, and appropriate singing by 
the pupils,' be repealed." 

An injunction is a command to refrain from a particular act. 
From what act r From the act of promulgating this rule ; from 
the act of telling that such a rule has been passed ? Is that what 
has been enjoined in this case ? On the contrary, the work of the 
School Board was accomplished when they adjourned that night. 
The rule was promulgated by its passage. It is the duty of every 
teacher to obey it. It is clear that when the Board repeals a rule, 
that rule is destroyed. When the Board enacts a new rule, that 
rule is a law of the schools, unless the passage of that rule be an 
abuse of the powers granted to the Board; and that is the final 
and last question that will be discussed in this case. 

Judge Storer. Suppose they resolved that the English language 
should not be taught there. 

Hoadly. I will come to that. My impression is that there 
would be no remedy then, if such a case should occur. The 
proper forum for the decision of such questions is once a year, at 
the annual election. Might they not omit German ? 

The Code does not provide for a mandatory injunction as an 
interlocutory order. As a measure of final relief the mandatory 
injunction was not abolished by the Code, as was decided in the Street 
Railroad case, involving the question of street railroad fares. There 
is no interlocutory mandatory injunction. On the contrary the 



Argument of George Hoadly. 115 

Minor et al. -v. Board of Education of Cincinnati et al. 

injunction of the Code is a command to refrain from doing a par- 
ticular act. How small is this case ! How trifling is the case 
which we are here arguing, if this is all which is to be considered, 
whether Mr. Hurlbut shall be restrained from going to the school 
teachers and telling them that a rule has been passed. How absurd 
the controversy seems in that light. But that is not the true light. 

Your Honors are appealed to, not to restrain Mr. Hurlbut, but 
you are appealed to, to compel the School Board to reinstate the 
ancient rule, or to make a new rule for them. If this proceeding 
has any sense or meaning at all, that is its sense and meaning. 
And in that sense I propose to discuss this case. Every teacher 
knows that this rule is already promulgated, and that a teacher 
obeys or disobeys it upon his own responsibility. How can the 
Board be restrained from enforcing the rule ? How is the Board 
to enforce the rule save by punishing the teachers who disobey its 
mandates ? How is the ancient rule to be restored save by man- 
date from this Court compelling its restoration? And, therefore, 
I say that while I here waive the objection of form, while I here 
concede that if your Honors should be of the opinion with me 
that the proper mode of proceeding, if any mode of proceeding 
there be, is by mandamus, I am willing that the power shall be 
exerted here by injunction, if your Honors can find any mode of 
applying such remedy to the case. The thing that is asked here 
is a mandate, a command which is to compel the School Board to 
restore the ancient rule (or adopt a new rule), to worship God 
reverently at the opening of each morning's exercises by the read- 
ing of His Holy Word, and by the singing of appropriate hymns and 
psalms, and by such form of religious instruction as this Court 
may define as necessary for the work which the School Board is 
required to do. That is what this Court is asked to do here. 

Betore passing to the consideration of the question whether 
this is in its nature a subject, under the Constitution of the State of 
Ohio, over which this Court can have no control, over which the 
School Board have a discretion to exercise precisely in the mode 
they have exercised it, I desire to call your Honors' attention to 
the large language with which powers have been vested in the 
School Board by the law of 1834 and the law of 1853. Section 
9, of the law of 1853, provides that they " shall make such regu- 



1 1 6 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

lations, from time to time, for the government and instruction of 
the children therein, as to them shall appear proper and expedient." 

To them, not to this Court, shall appear proper and expedient. 
The 32d section of the act of 1834 contains the same language. 
Your Honors are aware that that which is confided to the discre- 
tion of a corporation is not a subject of revision by a court sitting 
in equity, and the same is true of official boards. The discretion 
of an official board may be abused, but if the abuse be in a mattei 
lawful, if the abuse is a matter of misjudgment merely, and not a 
matter of fraud, it has been decided in innumerable cases that 
courts of equity will not interfere. 

It has never been denied that in a matter confided to corpor- 
ate discretion — this is but a board exercising corporate functions, 
or exercising powers delegated by the State— I say that in a matter 
confided to the discretion of a board, an appeal can not be made 
from the board to a court of equity. Could an appeal be made to 
this Court should the study of arithmetic be abolished ? Judge 
Stallo has alluded, and your Honor has playfully responded, to a 
suggestion founded upon the teachings of Charles Darwin — teach- 
ings which originated with as true a disciple of science as lives at 
the present day — which have been gladly taken up by a thousand 
others, and are indorsed by some of the greatest names in science 
to-day, and among them I may name Sir Charles Lyell — I say, if 
your Honors please, erroneous as in your judgment that doctrine 
may be, if the School Board of this city should inculcate it as true, 
would there be an appeal to your Honors to correct the error ? I 
doubt it. This tribunal is not created for such purposes. Or, 
your Honors, if the opposite theory be true, if the catastrophe 
theory of creation which Professor Agassiz, in the introduction of 
his larger work, The Natural History of the United States, has so 
zealously espoused, be true. 

If that theory be true, the theory of special creation at parti- 
cular epochs by the fiat of the Almighty ; if that theory be false, or 
be true, is there a power in this Court to require the use or omis- 
sion of the text-book ? My friends have referred to McGufFey's 
Readers. There is a series of book,s largely introduced' into the 
schools of this country — I mean the readers of Marcius Willson — 
the Fifth Reader of which is almost wholly occupied by essays of 



Argument of George Hoadly. 117 

Minor et al. -v. Board of Education of Cincinnati ct al. 

a scientific character. Supposing that these readers should be 
adopted in our schools, as they are already adopted in many of 
the schools in the West, probably to an equal extent with McGuf- 
fey's Readers — supposing that the Willson Readers should supplant 
the McGufFey Readers in our schools, and it should be found that 
in some particular spot lurked a heresy, could an appeal be made 
to this Court to extirpate it ? 

I ask, would it be proper for a tax-payer of Cincinnati to wait 
upon my friend, Mr. Walker, the city solicitor, and demand that 
he should proceed by injunction against a book that contains a 
scientific heresy? Where is the end of appeals to this Court? 
Has this Court the schools of Cincinnati in its custody, bearing the 
same relation that the lord chancellor does to the property of a 
lunatic, or to the person of a lunatic, or of an infant ? Are your 
Honors the custodians of these schools, sitting here to hear appeals 
from the Board of Education, upon questions upon which that Board 
may not only be wrong, but dangerously wrong ? Are not all 
these questions finally committed to the chosen agents of the peo- 
ple, the delegates from their several wards, sitting in convocation as 
the Board of Education ? 

During the war I was called on, as a member of the Board 
of Education of the suburban village in which I reside, to exam- 
ine a history of the United States, which it was proposed to intro- 
duce into our schools, and which was then, and, I presume, is yet, 
the text-book in the schools of the city. I found that in treating 
of the conduct of Massachusetts during the war of 18 12, this writer 
laid down as undoubted principles of law that the Federal government 
have no right to order the militia of a State beyond its borders, and 
no right to fill its armies by compulsion — in other words, by draft. 

Your Honors, this was in the darker days of the war, and 
here was what I regarded as poison — most deadly poison. No 
wonder that I reported against this history, and that we adhered to 
our former text-book, patriotic Lossing. But, could an appeal 
haver been taken to your Honors, and the reading and study of that 
work been enjoined? 

Another instance: There are two great schools of morals — 
the Utilitarian and the Intuitional — one teaching that morality is 
founded upon expediency : the other finding its basis in conscience, 
9 



1 1 8 Superior Court of Cincinnati. 

Minor et al. <v. Board of Education of Cincinnati et al. 

in innate ideas, in intuitions. For one, I am profoundly convinced 
of the truth of the theory of Intuitional morals, and believe that 
the school of Paley and Bentham is no school of morals at all, but 
of immorals. Could "the city solicitor, under the law giving him 
power to restrain by injunction abuses of corporate power — could 
I as a tax-payer, in case of his refusal, be permitted under the 
same law to refer this question to this Court? If not, — if no 
error in teaching and no omission to teach the true doctrine in 
matters of science, constitutional law, or morals, can be thus 
brought here, — how comes the revision of the action of the Board 
upon the subject of religion to be within your Honors' powers? 

For errors of this kind there is, in my judgment, no safe, no 
final arbiter, but the result of free public discussion. 

Suppose your Honors go on and decide that the Bible either 
shall or shall not be read in the schools. Will your Honors' 
decision end the question ? Will an appeal to the Supreme Court 
of the State of Ohio end the question? Can any court pronounce 
upon such a question a final decision ? Is there not at once taken 
an appeal to the people ? Is not the decision a signal for renewed 
agitation? Is there any decision of this question short of the 
ascertainment of the truth, after lengthened debate, by the 
people themselves? There is but one way to settle such a. ques- 
tion. It is settled when an enlightened public opinion reaches the 
point of settled convictions — when the community are satisfied 
that the just result has been attained. Then, and then only, 
agitation will cease. This will not be reached in an hour nor a 
day. It may require years of examination, of conflict. It can 
hardly be the result of a single election. And if so, it is not a 
subject as to which this Court are called upon to prescribe rules. 

But again, your Honors: If religious instruction may be 
given in the schools, and this Court may enforce the duty by the 
process of injunction, then surely it can not be denied that by the 
same means you may provide that such instruction be correct. 
Surely, then, if the children may be taught that he only who 
"believeth and is baptized shall be saved," your Honors must, at 
the instance of my Baptist brother, who is to follow me, define the 
meaning of the original Greek, and restrain the teacher from read- 
ing its English translation, except in the words "plunge into" or 



Argument of George Hoadly. 119 

Minor et al. -v. Board of Education of Cincinnati et al. 

"immerse;" or at the instance of Brother King, enforce as true 
the regenerative effect of sprinkling. Your Honors will next, on 
motion of a Universalist plaintiff, investigate the meaning of 
Gehenna and Hades, and determine whether they were places of 
post-mortal retribution. Your Honors will resolve the problems of 
free grace, and limited atonement ; will decide the points left 
unsettled by the trial of Dr. Beecher; will trace and establish the 
value of apostolic succession and Archbishop Parker's consecration. 
There is this advantage in the reference to this Court : if the 
world at large accept your decisions, at once disappear a thousand 
shades of night, a thousand casuistries, and glorious harmony is 
the result. But will it accept? And as for the week-day 
schools, even they will be "like a little heaven below." For your 
Honors are three in number, and can not divide equally and leave 
any question in doubt. You are sure to have a majority one way 
or the other. Unerring certainty is what our children are entitled 
to, and what, according to this theory, you can and must furnish. 

Why, if your Honors please, recurring again to the question 
which I discussed a few moments ago as to the nature of this pro- 
ceeding — this proceeding means that no school can be opened in 
Ohio under the Constitution of the State, constitutionally opened, 
without the reading of the Holy Bible and appropriate singing. It 
means that no school can constitutionally exist in the State of 
Ohio without religious instruction. It means that the public must 
be taxed, even if the public do hot desire to be taxed, for religious 
instruction. It means a great deal more than that, if your Honors 
please, as I shall presently show, for, if religious instruction be 
once entered upon, it means that the whole truth shall be taught in 
the schools. It means that no modicum, no mean or small 
amount, shall be taught, but that the whole counsels of God shall 
be given through the agencies of the public schools supported by 
popular taxation, to the children of the parents who sent them 
thither. There is no result short of that. 

It is not possible that there can be a limit drawn by this Court 
short of that which shall include all principles of truth. All 
religious truth must be taught, such as is fit to be expounded con- 
sidering the age, considering the circumstances and the relations 
of the children. 



i ao Superior Court of Cincinnati. 

Minor et. al. -v. Board of Education of Cincinnati et. ah 

To recur, if the Court please, to the question of the propriety 
of an appeal to this Court by a dissatisfied scholar — using "scholar" 
not in the sense of "pupil" — a dissatisfied citizen, who found that 
in some of the text-books used under the authority, of the School 
Board, there was either error of law, or heretical doctrine in point 
of principle, other than religious principle or error of science. I 
had supposed that such application would be greeted with derision, 
and that the answer would at once be made that the tribunal from 
whom relief was sought was not a tribunal constituted for the pur- 
pose of granting relief in such cause. 

The only distinction that can be made between the misuse of 
the powers of the School Board in matters of history, of constitu- 
tional law or of science, and in matters of religion, grows out of 
the higher importance of matters of religion as compared with 
matters of important secular knowledge. And this is precisely the 
ground upon which those who have burned to death have justified 
themselves for burning heretics. It is precisely the ground upon 
which autos-da-fe were justified in Spain, — that it was of more con- 
sequence that the souls of the people of Spain should be saved 
from hell or from sin than that the lives of a few men should be 
spared for repentance. It was on the idea that religious error is 
an error of such transcendent consequences, involving in the case 
of a human soul an eternity of perdition, according to the ordinary 
belief — it was upon this idea (an idea that eternal, unending wel- 
fare or woe depends upon errors of doctrine, depends upon correct- 
ness of instruction) that men have, by all denominations that nave 
had power, been destroyed and persecuted. 

Now,. your Honors, the view to which I shall address myself, 
and attempt to persuade your Honors in some one of the various 
applications I shall make of it, that I am correct, is this : That if 
the State of Ohio undertakes to teach religion at all, she has no 
tight to undertake to teach less than all religious truth; that if the 
State of Ohio is to be set up and constituted a teacher of religious 
truth at all, it is for the reason just suggested, of the transcendent 
importance of religious truth as compared with other truths; and, 
therefore, she has no right to withhold from any child within her 
borders all that is necessary for the salvation of that child from 
perdition. It is alleged in this petition, and not denied in the 



Argument of George Hoadly. \i\ 

Minor et al. -v. Board of Education of Cincinnati et al. 

answer, that there are children in Cincinnati whose only access to 
religious truth is through our public schools. Is it not of infinite 
importance that the religious teaching they receive be true, and be 
complete? 

It is not without purpose on our part that this allegation has 
been met by an explicit admission, for it is not only .true, but its 
truth involves consequences to this case, and to the proper decision 
of this case, from which we can not shrink. If the State of Ohio, 
as is thus alleged and admitted, has the care of numbers of little 
children without parental care, without religious instruction in Sab- 
bath schools, or elsewhere, and if the State of Ohio has it within 
the various offices she subserves toward those little children to 
teach them in religious truth, then it is the solemn duty of the 
State of Ohio to teach them all religious truth. 

The State of Ohio has no right to keep from any one of those 
children, "the least of those little ones," any truth essential to the 
welfare of that child's soul. So far must we go if we are going on 
this road at all. Either the State of Ohio has no charge of the 
care of that child's soul whatever, or it has all the charge ; all the 
charge that is not committed to others ; all charge that is necessary 
for the protection of that child in the endless vista of time to which 
the soul of that child mustjook. What a weight of responsibility 
is upon the minds and consciences of those who hold that the State 
is justified in teaching religious truth at all, but withhold from these 
children sufficient instruction in religion for their salvation. What 
excuse to such will it be to say in the great day : "we gave them a 
daily reading of Scripture, and occasional passages of the Bible in 
McGuffey's Readers ?" 

The fact of the ignorance of such children is disgraceful, not 
to the State, but to the Church, to those who can and may instruct 
these children outside the public schools, and who ought to do it. 

Coming to the question what the acts forbidden by these reso- 
lutions of the School Board are, I find them to be divided into 
these classes: First. The reading of the Holy Bible, with appro- 
priate singing ; and, Second. Religious instruction and the reading 
of religious books. 

What does the reading of the Holy Bible, with appropriate 
singing, mean? As I understand it, it is an act of worship, pre- 



122 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

cisely that ; an act of Protestant worship. Is it anything else ? 
Does it instruct the child other than incidentally ? There are many 
hymns, which are, no doubt, sung in our schools which contain 
much theological instruction, whether true or false. I have one in 
my mind which contains the doctrine of justification by faith in its 
first lines, the hymn beginning, "Just as I am." 

Almost all hymns are written, not for the purpose of expressing 
with poetic fervor or a playful fancy, but for the purpose of teach- 
ing in rhyme a dogma. At least such, with the imperfect poetic 
sense I have, I have found to be the contents of most of the 
hymn-books I have had occasion to examine. And the sing- 
ing of hymns is held by one of our denominations to be an offense 
in itself. The reading of the Holy Bible, with appropriate singing, 
is an act of worship, and only incidentally can it be otherwise. It 
no doubt teaches to the child that the Holy Bible is a work sui 
generis, to be read only with a sense of awe and reverent devotion; 
that is to say, if it is properly read by the teacher. 

I have been told that it is often carelessly and irreverently 
read, and that in a very large portion of our schools, including all 
the German schools, the rule has been, for a great many years, 
entirely obsolete. But so far as this exercise conveys instruction, 
it is only incidentally, collaterally. The main purpose and object 
is to perform an act of worship. If your Honors are familiar with 
" The Cotter's Saturday Night " of Burns, you will find that this, 
with the reverent prayer, constituted the family worship of that cot- 
tage, so beautifully celebrated in those lines. Does the omission 
of the prayer leave the reading of the Sc/rp'cures, and the sing- 
ing of the hymn, any the less an act of worship ? Is prayer that 
which makes the exercise an act of worship? Not at all. 

I am aware that one, who, as Wendell Phillips once said, 
" lives by venturing a bold theory to-day, and spending to-morrow 
in taking it back, finding that he has been 

' Dropping buckets into empty wells, 
And growing old in drawing nothing out/ 

who assures us that it is not cowardice, but want of candles and a 
liturgy, that makes him useless," who has set himself up as a sort 
of Unitarian bell-wether, and runs before the advancing flocks 



Argument of George Hoadly. 123 



Minor et al. v. Board of Education of Cincinnati et ah 



crying, " Suspense of faith ! — no pasture in this direction," has pro- 
claimed that the Bible in the schools is a sort of Protestant 
symbol, like the flag on Fort Sumter, not to be withdrawn without 
firing the nation's heart, the lowering of which is an insult, to be 
wiped out in blood. An emblem, it may be, of the supremacy of 
Protestantism, his Protestantism, whatever that may be. This is 
the man who, at Boston, once told the Unitarian left wing, the 
radicals, transcendentalists, infidels 1 , or whatever you please to call 
us, that by our labors the Holy Ghost had visited the Unitarian 
churches ! 

But whether considered as a Protestant flag, or as an act of 
worship, or as religious instruction, the exercise is out of place 
unless the community be unanimous in uniting in the worship, or in 
admitting Protestant views, or in recognizing the schools as appro- 
priate places for religious instruction. 

Religious instruction is forbidden by these resolutions; and the 
reading of religious books. Right here I wish to examine what 
seems to be a very far-fetched suggestion, that McGufFey's Read- 
ers, and other books, will be cast out of the schools thereby. Not 
so, your Honors. McGufFey's Readers are not religious books. 
The religious matter in books of reading and secular instruction, is 
not religious instruction. 

Forbidding religious instruction and the reading of religious 
books is certainly not intended to forbid teaching children. to read, 
although the matter read may be in its character religious. The 
gentlemen forget the explanation that is put upon this in the same 
resolution — "the object of this resolution being to enable all to 
enjoy the school alike, without preference to any sect." It means, 
therefore, that teaching religion, and the reading of books of reli- 
gion, shall be forbidden in the schools as part of the school ser- 
vices. But this, by no means, as I understand it, prevents, or was 
intended to prevent, the reading of ordinary books that are now 
used. Aye, more, I xlo not understand this to prevent the reading 
of passages of the Bible which occur in the ordinary books of 
reading, if they occur as part of the ordinary exercises of the day. 
But I do suppose that it was intended to prohibit, to carry out a 
prohibition which the School Board supposed was in the Constitu- 
tion, the teaching of religious truth as part of the instruction given 



124 Superior Court of Cincinnati. 



Minor et al. -v. Board of Education of Cincinnati et al. 



to the children by the State of Ohio, that the reading of the Bible 
as an act of worship is expressly forbidden by the very letter of the 
Constitution of the State of Ohio. 

" No person shall be compelled to maintain any form of wor- 
ship against his consent," says the Constitution of Ohio, and 
to take the money of a Jew or a Catholic, and employ it in hiring 
men to perform acts of Protestant worship, is as direct an inva- 
sion of the Constitution of Ohio as it is possible to imagine. 
Gentlemen can not get rid of the objection that way. If the act is 
not an act of worship, I desire them to tell me what it is. Why 
is the morning hour selected, the beginning of the day, and with 
appropriate singing, a passage read from the Bible, except that the 
day may be dedicated by the worship of Almighty God ? 

I admit that if this school be not supported by the money of 
the State ; if the money of the Catholic or the Jew, or the unbeliever, 
do not contribute to the employment of the teacher, there can be 
devised by a pious teacher of a Protestant select school no more 
appropriate mode of commencing the day than in the way thus 
indicated. But the objection to this is, that while proper as a form 
of worship for a sincere Protestant to pass through as an introduc- 
tion to the services of the day, it is, in a school, intended to be 
open to the children of parents of all creeds, necessarily forbidden 
by the Constitution of the State for the very reason that it is 
worship. 

There can be no question but that the Supreme Court of 
Ohio have so declared, that their expressed opinion leads to this 
result ; there is no escape from this conclusion but in a confusion 
of legal terms, by attributing to that which was a legitimate reason 
for the decision, lying right in the logical pathway of the Court, 
the force of an obiter dictum, because there happened to be other 
reasons stated by the Court. 

I shall not follow my friend Mr. Ramsey into the history of 
the colonies, or of other States. We live in Ohio, and the exam- 
ple of no other commonwealth, bond or free, ancient or modern, 
defines the .meaning of our system. But I wonder that among the 
historical incidents to prove the authority of the King James' Bible 
in the United States, he did not cite from Benedict Arnold's justifi- 



Argument of George Hoadly. 125 

Minor ct al. <u. Board of Education of Cincinnati ct al. 

cation of his treason, those passages in which that Protestant vil- 
lain stated as an apology for his baseness the growing tendency to 
Popery of those whom he had deserted. 

But to return to Ohio. Our Supreme Court have told us to 
look to the syllabus of a reported case for the statements upon 
which the court agree. And in Bloom v. Richards, 2 Ohio State, 
387, the Court unanimously agreed to these principles which I read 
from the syllabus : 

" Christianity is a part of the common law of England, but 
under the provisions of our Constitution neither Christianity nor 
any other system of religion is a part of the law of this State. 

"We have no union of Church and State, nor has our gov- 
ernment ever been vested with authority to enforce anv religious 
observance, simply because it is religious." 

The case involved the validity of a contract for the sale of 
land, made on Sunday. The argument was, that Christianity is 
part of the common law of Ohio, and that the sacred character of 
the first day of the week, sometimes called the Christian Sabbath, 
is secured by Christianity. Had this argument been sustained, the 
contract in question must have been pronounced against. It was 
not sustained, and the contract was therefore enforced. 

It is true that the Court do not confine themselves to a denial 
that Christianity is part of our system, but proceed also in the same 
syllabus to deny that if that were so, the consequence claimed 
would follow. But the gentlemen who represent the plaintiffs are 
no more authorized to argue that the passages I have quoted from 
the syllabus are obiter dicta for that reason than, in another case, 
others would have the right to claim that the other propositions of 
the case are excluded from being authority by these, and, therefore, 
that they also are obiter. This mode of arguing destroys the 
value of every decision for which more than one reason is given. 
One is unnecessary, because the other would suffice; therefore 
each is unauthorized, and mere obiter ! 

But Bloom v. Richards is not the only case in Ohio, in which 
the highest tribunal known to our system has pronounced upon the 
subject. The same learned judge (Thurman), who delivered 
judgment in that case, also represented the Court in McGatrick v. 



126 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

Wason, 4 Ohio State, 571. It was a case involving an examination 
again of the basis in our laws for the observance of Sunday rest. 
The Court. changed during the two years interval between the 2d 
and 4th volumes, by the retirement of Judges Caldwell and Cor- 
win, and the substitution of Judges Swan and Kennon. But the 
Court were again unanimous, and their views are expressed by 
Judge Thurman in these golden, words : " For as was also said in 
that case {Bloom v. Richards), no power is possessed by the Legislature 
over things spiritual, but only over things temporal ; no power to enforce 
the performance of religious duties, simply because they are religious- — but 
only within the limits of the Constitution, to maintain justice and pro- 
mote the public welfare." 

In these words lies the only safeguard that these gentlemen 
have against the worship of the Virgin Mary in our schools — just 
exactly that and no other. May not the Catholics, should they ever 
secure a majority and the Board is to teach religion, teach it as they 
believe it ? For two years while I was a member of the School 
Board in the village of Woodburn, we had a most excellent Cath- 
olic lady at the head of our primary school. I ask your Honors 
what was to prohibit that young lady from opening the services of. 
the school by the appropriate singing of a Catholic hymn. I ask 
your Honors what was to prevent that lady, under such a rule, from 
opening her school from day to day by select passages — such passa- 
ges as would bear with force in favor of her views ? Is it for- 
gotten that the Catholic Church does not recognize this book as 
the Holy Bible ? Are the Deutero-canonical books excluded from 
the use of a community, in which one-third of the people are 
Roman Catholics ? Among these, are the only books of the then 
ancient literature of the Hebrews, clearly teaching the immortality 
of the soul ; among them is the book of the Wisdom of Solomon, 
containing those wonderful verses (chap. 3) : 

1. " But the souls of the righteous are in the hands of God, 
and there shall no torment touch them. 

2. " In the sight of the unwise they seemed to die, and their 
departure is taken for misery, 

3. " And their going from us to be utter destruction j but 
they are in peace." 



Argument of George Hoadly. 127 

Minor et el. -v. Board of Education of Cincinnati et al. 

Judge Storer. You forget the veirses in Job, " I know that 
my Redeemer liveth," etc. 

Hoadly. Not so, your Honor. Consult any hand-book of 
Scriptural explanation, and you will find that Job refers to the 
avenger of the Jewish law, and has been construed 'to mean the 
promise of future life only by misunderstanding and mistranslation. 
So says Dr. Barnes in his notes on Job. , 

Judge Storer. I know. And Kitto also, but others take a 
different view. 

Hoadly. Had this young lady of whom I have spoken seen 
fit to read from Maccabees those words (2 Maccabees, 12th chap, 
v. 44, 45), inculcating prayer for the dead, upon which the Catholic 
Church relies, how would the parents of Protestant children attend- 
ing her school have relished the news of such an act of wor- 
ship ? And yet she would have been as sincere, as true to her 
faith in so doing as those are v who upon the opposite side of the 
case, insist that King James' version shall be daily read in our 
schools. 

If you will reflect on what religion is, in its largest or its 
narrowest sense, you will see how impossible it is to construct a 
scheme of public instruction upon any other plan, than that 
which Judge Thurman enunciates. The bill in this case alleges 
that for forty years the elementary truths of religion have been 
taught in the public schools of Cincinnati. And what are the 
elementary truths of religion ? Is there one single one on which 
all Protestant sects — let alone Catholics — can unite, save the single 
principle of allegiance to a personal Deity? Is there any other ? 
Why, the moment you take a step further and undertake to define 
the Deity, the moment you undertake to introduce the Savior jnto 
the Godhead, the moment you undertake to touch the doctrine of 
the Trinity, you are met at once by such unfortunate persons as 
constitute the sects called Arians, called Unitarians, called Hicksite 
Quakers — by numbers of Spiritualists, all, or the most of whom, 
or at least many of them, or for the sake of argument, I will sup- 
pose one of them is as sincere and as justly entitled to the protec- 
tion of the State in his religious opinions as are the great majority 
who enforce the rule. 

Suppose you go further. The moment you touch religion 



128 Superior Court of Cincinnati 

Minor et al. -v. Board of Education of Cincinnati et al. 

in the Catholic sense, you come upon the fundamental, the ele- 
mentary principle of religion — namely, the existence of the Church 
as a divinely commissioned body, into whose hands Christ has 
given the keys of heaven and hell ; to whom he has intrusted the 
sacred duty of interpreting Holy Writ. Certainly there can be no 
truth of religion, save the existence of God, of a more elementary 
and necessary character than this ; and yet into what school can 
such a proposition be introduced without offending every parent, 
every tax-payer, save and except the Catholics and a few High 
Church Episcopalians; into what school can the doctrine of justifi- 
cation by faith be introduced and taught, either by the singing of a 
hymn or otherwise, without trampling upon the most sacred convic- 
tions of large bodies, not of' Catholics merely, but of worshiping 
Protestants? The whole body of Swedenborgians has been taught 
by its founder the doctrine of no justification without sanctifica- 
tion — justification not by faith alone. The entire Unitarian body, 
if they agree in anything, agree in the idea that salvation is not 
salvation from punishment, but from sin. All denominations that 
believe in retribution hereafter, but retribution having an end, are 
disbelievers in the doctrine of justification by faith. 

Turn to the sanctions of religion ; surely, no truths are more 
necessary to be known by our children than the consequences of 
error. Shall the children of Universalist parents be taught eternal 
damnation, or, the children of parents who believe in an eternity 
of woe as the punishment of sin, be taught Universalism? Where 
are we to stop if the State undertakes religious instruction ? No, 
your Honors, the true place to stop is to stop by not beginning. 
The place to instruct in religion is the family ; the father to instruct 
his children. The place to instruct in religion is the church — the 
pastor to instruct the parents. The places to instruct in religion are 
the ragged schools. Let our philanthropists gather these little 
children from the highways and the byways, and teach them in 
industrial schools, in Sunday schools. Why should it not be 
entirely committed to these benevolent gentlemen, and why should 
those who sincerely disbelieve in any of the fundamental truths of 
the Christian religion be compelled to pay taxes towards the instruc- 
tion of their children in these truths ? 



Argument of George Hoadly. 129 



Minor et al. -v. Board of Education of Cincinnati et al. 



I have characterized the reading of the Bible as it is practiced 
in our schools as an act of worship. In my opinion, it is just 
that. But suppose I am wrong, and that it is not worship, what 
is it? 

One of our newspapers (the Times) has, for weeks, been pro- 
claiming that the Bible can not be read as a religious, but that it 
must be read as a moral instructor. But my friends upon the 
opposite side are too wary to put themselves upon that ground. 
For the School Board do not purpose to forbid all teaching of 
morals in the schools. And their right to say what text book 
of morals shall be read, and when read, can not be impugned. No, 
your Honors, if the Discourses of Epictetus, or Wayland's Moral 
Science were here in question ; if from them, and not the Bible, 
passages had been read as a daily introduction to the labors of the 
day, the plaintiffs and their counsel would not be here. It is 
because the Bible is a book of religion that they are here. It is 
because it is used in worship that they are here. 

If the Bible is not thus read as an act of worship, it must be 
by way of religious instruction. There is no middle ground. 
This position leads to this consequence to the case : It renders it 
perfectly legitimate to deny the authenticity of the Bible, or of 
any book or passage in it; legitimate to impeach its credibility as 
history; its truth as dogma. It- would have been a perfectly good- 
legal defense here to-day to have pleaded that the book is unworthy 
of credence, and therefore unfit to be taught to children. It is 
far from our purpose to do this. We assert none of these things, 
but that we might properly aver them, and thus render an author- 
itative exposition by this Court of the truth of the Bible, or. the 
value and genuineness of particular passages, can not, as a legal 
proposition, be controverted. The conclusion I seek to draw from 
this argument, is to show that the subject is not one for the juris- 
diction of a court of law. Upon such questions, no court can 
pronounce an authoritative judgment. They are relegated to the 
forum of individual intelligence and conscience, where the man is 
alone with God. But such questions have been, and are honestly 
made, and might be made by answer to this petition. 

My friends say the book which they propose to use is the 
established version — perhaps they do not use that language — the 



I jo Superior Court of Cincinnati. 

• Minor et al. ii. Board of Education of Cincinnati et al. 

King James' version of the Bible. I have said enough, perhaps, 
already, upon the subject of the differences that exist between the 
denominations with regard to this work; that the Catholics admit 
into it what they call the Deutero-canonical books, what we call 
the Apocrypha ; that the Jews reject the entire New Testament 
that there are large differences of opinion among scholars as to 
the value and authority of other books, we all know. 

Martin Luther characterized the Epistle of James as an 
epistle of straw, and he left connected with his translation of the 
Apocalypse this injunction, that that translation should never be 
published, except accompanied by his express disclaimer of belief in 
its inspiration — an injunction which, it need not be said, has been 
more honored in the breach than in the observance. 

So, too, other books have been attacked. Isaiah is divided, by 
some scholars, into Isaiah and the Pseudo Isaiah ; Daniel is post- 
poned to the age of Antiochus Epiphanes, and [thus becomes a 
prophesy after the event ; Second Peter is claimed to indicate, by 
internal evidence, a post-apostolic origin. 

Indeed, in these modern times it has been found that a man 
could fill the office of bishop of the English church and yet enter- 
tain the most heretical views — if they be heretical — in regard to 
the authority and value of the five books commonly reputed as 
Moses' ; and it has been found possible for a gentleman to occupy 
the position of Professor of Greek in Oxford University, and yet 
entertain the opinion that this work was to be treated in all respects 
as other human works are treated in respect of criticism, of dis- 
cussion, of debate. I refer, of course, to the last essay of the 
work called Essays and Reviews, by Professor Jowett. 

Ferdinand Christian Baur, the theologian of Tubingen, fol- 
lowed by the non-conformist divine, Dr. Samuel Davidson, the 
most learned English scholar of the day in this branch of research, 
proclaims the Gospel of John a work written after the middle of 
the second century, and for a dogmatic purpose. 

These are questions among scholars, it may be truly said. 
But when you find in a community like this a very large number 
of persons who are taught by their pastors that the Apocrypha is a 
sacred work, and when you find in this community a very large 
number of persons who are taught by their pastors that the New 



Argument of George Hoadly. 131 

Minor et al. -v. Board of Education of Cincinnati et al. 

Testament is not a sacred work, then it becomes a matter of grave 
moment, whether to the children of the one class the Apocrypha 
shall be rejected, and to the children of the other class the New 
Testament shall be read. 

And again, your Honors, there are large differences of opinion 
as to the genuineness of particular passages. For instance, the 
7th and 8th verses of 1st John, chapter 5. 

Judge Storer. They are conceded to be spurious — an interpola- 
tion of a later age. 

Hoadly. Yes, your Honors; a product of the Arian contro- 
versy. But there are others. I have heard the remark made with 
reference to this case, that the question is whether the little children 
of our schools might not learn the Lord's Prayer. Why, there is 
no more doubtful passage in the Bible than the ascription clause of 
the Lord's Prayer. It is not contained in the three most ancient 
manuscripts. Baron Tauchnitz has thought it a worthy tribute to 
his calling to make his one thousandth volume a rescension by 
Tischendorf of the New Testament on the basis of these manu- 
scripts. One of them is wanting in that portion of Matthew, but 
the others, the Sinaiatic and Vatican codices close the prayer in 
Greek with the words which, since the age of St. Jerome, the 
Catholic Church has rendered into the sonorous Latin, "Sed libera 
nos a malo^ Amen " — u But deliver us from evil, Amen." 

So, too, the same manuscripts end the 16th chapter of Mark, 
with the 8th verse, as Eusebius and St. Jerome tell us nearly all 
the trustworthy copies of their time did. 

Also, the account of the woman taken in adultery has been 
disputed. And many other minor passages, especially such as bear 
on the Arian and Athanasian controversy. 

Understand my purpose. Many of these things are of little 
importance. Some of the disputed books and passages have, how- 
ever, an independent value of their own, irrespective of whether 
they belong in the canon or not, and whether they are the authentic 
words of the authors to whom King James' version attributes 
them. 

But I cite them to show the nature of the questions that 
become legitimate the moment it is decided that this Court may 
require religious instruction' to be provided by the Board. These, 



132 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

and rnanv other problems, for example, the large one of Inspira- 
tion, its nature and extent, at once call for solution, first by the 
Board, and then by the Court. I refer to thern to show how 
incompatible it is with the duties which the law imposes upon the 
Board for even that tribunal to consider such matters j how unlike 
your Honors' proper judicial duty the consideration of such topics 
becomes. And yet, if a member of the School Board may object 
to a text book of geography or history, and ask his associates to 
banish it from the schools because of errors, as he certainly and 
properly may ; he may, a fortiori; indeed, if true to his conscience, 
he must object to that which', in the Bible, he deems an interpola- 
tion or a mistranslation. If the Bible is read by way of religious 
instruction, this consequence certainly follows. 

But it is said that the Bible, the whole Bible of the King 
James' version, should be read, as published by the American Bible 
Society. But that society, unfortunately, has not been uniformly 
consistent. I have before me three Bibles of their publishing; edi- 
tions, viz: of 1858, 1859 an d J 868. They differ in the headings 
or synopses of the contents of the chapters. How extensive these 
differences are I know not. I see, however, that the Bibles of 
1858-9 describe the contents of Solomon's Song quite differently 
from the Bible of 1868. The headings of the chapters of the 
former treat it as a love poem, a song of the bride and bridegroom. 
The latter, like the earlier Bibles, describe it as a religious work, a 
song of Christ's love for the Church. The history of these 
revisions is known to your Honors. Some enlightened gentlemen 
having control in the American Bible Society revised the headings 
which had aforetime been received, and caused them to speak the 
language of truth and correct description. There came a reaction, 
under the influence of which the ancient headings were restored. 
This occurred five or six years ago. I have not here one of the 
earlier copies, but the editions of 1858-9 are the revision, -and of 
1868 the product of the reaction. 

My friends talk about the Bible " without note or comment." 
Are these headings note or comment ? Are they read or omitted ? 
Are they put into the pupils' hands in the schools? If they are, 
then the discussion of their value is legitimate, and, indeed, in the 
School Board, necessary, unless that Board, recognizing its duty to 



Argument of George Hoadly. 133 

Minor et al. -v. Board of Education of Cincinnati et a/. 

furnish religious instruction, leaves the accuracy of the contents 
of the text books of such instruction to chance or the dictation 
of others. Necessary, too, here, if your Honors undertake to 
compel the Board to furnish religious instruction, unless you, 
too, leave to chance or the judgment of others whether that 
instruction shall be true or false, complete or incomplete, thorough 
or superficial. 

My friend, Mr. Ramsey, will bear with me if I say that 
beneath the eloquence and piety- of his powerful and manly 
argument, to which I concede the no small praise that it shrank 
not from its own logic, cruel though, as in my judgment, the 
consequences it involve are, I heard the cold, harsh undertone of 
persecution. I do not believe he would consciously offend even the 
feelings of an opponent. Yet, whether he is aware of it or not, 
his speech was a plea for persecution — an argument to compel 
offense to conscience. Neither you nor I, your Honors, are 
responsible that this question is here. Some of us have felt that the 
time had not yet arrived for successful agitation. But the question 
is here. The agitation has come. It is a question of conscience. 
Its present condition is the result of an honest attempt to bring the 
fifteen thousand children of the Catholic schools into the district 
schools, to secure to them and to their parents that share in the 
benefits provided, to which their participation in the burdens 
imposed by the State entitles them. That attempt failed, but it 
led to this agitation, to these resolutions of the Board. And now, 
your Honors, comes the Catholic body, one-third of our entire 
population, and protest against the imposition of taxes upon them 
to pay for the reading of the Protestant Bible. Now comes the 
Israelite, three of whose Rabbis, Drs. Lilienthal, Wise and Gold- 
hammer, have preached in support of the School Board, and says 
he ought not to be taxed to support the system of reading the New 
Testament. My Hicksite Cjuaker friend tells me his conscience 
is offended. My own pastor and his flock, without a creed, but 
not without an honest purpose to serve the truth and live manly, if 
not godly, lives, are taxed to support a view of the Bible which we 
do not entertain, for to us the Bible is not a talisman, but a help, 
of which we are to understand, appreciate, believe, and, if you 

please, disbelieve so much as our reason requires. Other unbe- 
10 



134 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

lievers come ; they whom Mr. Ramsey regards as having no 
rights, and they claim liberty of conscience. What is persecution ? 
If, by law, to take the life is persecution, is it not more so to force 
the conscience. If to burn the child, to consume its mortal part, 
for believing as its parent taught it, would be persecution, how 
much less so is it to seize the immortal part of the little one and 
distort it — to do this in the name of the State, which has no 
capacity of infallible truth ? How can the parent, the Catholic, 
Jew, Quaker, Unitarian, or unbelieving parent — avoid the sense 
of wrong, cruel wrong, when told : " Your child has the choice to 
disbelieve what you hold as God's most sacred truth or lose the 
blessings of an education. If he receives knowledge, he must 
reject your faith. If he adheres to your faith, he must give up 
the hope of knowledge." 

But my friends may say the Bible without note or comment, 
and the singing of hymns is not making war upon Catholics, Jews, 
Unitarians and Hicksites ; is not teaching their children to shun 
their fathers' faith. Aye, but it is. Even the reading of the Bible 
without note or comment by unanointed lips is an offense to the 
Catholic, and he has the same right to his belief that you have to 
yours, and holds it as sincerely. Is the teaching of the New Tes- 
tament no just offense, when done by law or force, to the child of 
the Jew ? And the Unbeliever — even the Atheist — has he no 
rights that a Christian is bound to respect? 

I wish to read from the State trials a single case, which s hows 
what are the consequences of holding that the State may teach 
religious truth. 

I read from Cobbett's State Trials vol. 8, p. 526, from the trial 
of George Busby, for high treason, at Derby assizes, in the thirty- 
third year of the reign of King Charles the Second, of pious 
memory, defender of the faith, etc., A. D. 1681. First, let me read 
the indictment : 

" Then the Clerk of Arraignments proceeded to arraign the 
prisoner. 

« Clerk— George Busby, hold up thy hand (which he did) : 
Thou standest indicted by the name of George Busby, late of 
West Hallam in the county of Derby, clerk, for that thou, being 
a subject of our sovereign lord the king that now is, and being 



Argument of George Hoadly. 135 

Minor et al. i>. Board of Education of Cincinnati et al. 

likewise born within this kingdom of England, was made and 
ordained a priest by the authority derived and pretended from the 
See of Rome, after the feast of the Nativity of St. John Baptist, 
in the first year of the reign of our lady Elizabeth, late queen of 
England, etc., and before the 16th day of March, in the thirty- 
third year of the reign of our sovereign lord Charles the Second, 
of England, France and Ireland king, defender of the faith, etc., 
the laws and statutes of this kingdom of England little weighing, 
nor the punishments in the same contained not at all regarding ; 
with force and arms, etc., at the parish of West Hallam aforesaid, 
in the county of Derby aforesaid, being within this kingdom of 
England, voluntarily, freely and treasonably, on the 16th day of 
March, in the thirty-third year of the reign aforesaid, hath been 
and remained, contrary to the form of the statute in that case made 
and provided ; and against the peace of our sovereign lord the 
king, his crown and dignity." 

From the statement of the prosecuting counsel on opening to 
the jury, I quote the following description of Busby's offense : 

"Gentlemen, you hear the prisoner is indicted upon a statute 
made in the 27th Elizabeth, which makes it treason for any subject 
born to take orders from the See of Rome, and afterwards to 
remain in England ; which law I conceive was not only made for 
the security of the government, but also in favour of the lay papists 
themselves ; for though several statutes were made to keep them 
within the bounds of their allegiance, and to secure the government 
from their villainous designs ; yet it was experimentally found true, 
that no dangers or penalties whatsoever could deter or hinder them 
from plotting against the state, in order to bring us back again to 
the slavery of Rome, whilst those juggling managers of their 
consciences were suffered to come amongst us ; and therefore I 
may well call this statute, upon which the prisoner stands indicted, 
an act of charity to the common papists ; for it was made to prevent 
the dangers they would otherwise run themselves into, as well as 
the nation." 

On page 550, I find that the prisoner was found guilty, and 
thus sentenced : 

"Then Mr. Baron Street passed sentence: 
" That you the prisoner, now at the bar, be conveyed hence 
to the place from whence you came, and that you be conveyed 



136 Superior Court of Cincinnati. 

Minor et al. <v. Board of Education of Cincinnati et al. 

thence on a hurdle to the place of execution ; where you are to be 
hanged by the neck ; that you be cut down alive, that your privy 
members be cut off, your, bowels be taken out and burnt in youi 
view ; that your head be severed from your body ; that your body 
be divided into four quarters; which are to be disposed of at the 
king's pleasure : and God of His infinite mercy have mercy upon 
your soul." 

That is a specimen of what Protestants have done to Cath- 
olics. ' I was brought up on Fox's Book of Martrs, but I can 
find nothing in that book more barbaric than that. I charge 
neither Protestant nor Catholic with more than that they did not 
live in advance of the times. The logic of persecution can not 
be contravened. Admit the major and the minor premise, 
admit the duty of the State to teach religion, and the writ de 
heretico comburendo follows as a matter of course. There is but 
one escape, and that is by denying the authority of the State on this 
question. Then you have saved the citizen, the State and religion. 

In the State in which I was born, there was until 1819 a 
church establishment supported by taxes. I refer to the Orthodox 
Cono-reg-ational Church : — to the " standing order," as it was 

to to to ? 

called, of Connecticut. In that year, the Democrats (Republicans, 
they then called themselves) and the Episcopalians coalesced, and' 
under the battle cry of " toleration," with Oliver Wolcott, who 
had been a member of General Washington's cabinet, as their 
candidate for governor, overthrew the Federalists, and abolished 
the standing order. Dr. Lyman Beecher was then the pastor of 
the Congregational Church at Litchfield, and his autobiography 
gives a most interesting account of the revolution in the politics of 
the State. The apprehensions of evil of the clergy, among them, 
of good Dr. Beecher, were very lively. A flood-tide of immorality 
and wickedness would sweep the State. What actually followed ? 
Why, sir, the honest old doctor records in the same book that he 
dates, from the day the Congregational Church was disestablished 
in that State, the growth of the greatest revival of religion that 
Connecticut ever knew. 

Therefore I say that the total severance of Church and State 
is better for religion, and I believe the history of the United States 
proves it. Here, in proportion as we have dissolved the bonds of 



Argument of George Hoadly. 137 

Minor et al. -v. Board of Education of Cincinnati ct al. 

the Church and State, has religion increased. And it is because, I 
believe, that this thing, be it little or great, is the last bond that 
binds the State of Ohio to any ecclesiastical establishment, and 
because I believe it to be the bond which binds it to a Protestant 
ecclesiastical establishment, that I oppose it ; not that the Protestant 
is any worse than the Catholic Church ; I do not know that I 
should say that, but because any bond binding the State and Church 
is an evil to all concerned. And yet were it not a measure of real 
religious progress, I should take the same view I do. Unbelievers 
are not to be treated as having no rights. What, are the various 
forms of disbelief of the current religions, to make men outcasts, 
beyond the pale of the protection of the law ? God forbid that 
were I as orthodox as my brothers Ramsey or Matthews, I should 
forget that these men have the same rights I have. God forbid 
that I should forget that to some of these men mankind is under 
the greatest obligations. That Benedict Spinoza, of pure and 
spotless life, who sacrificed himself to poverty in order to do what 
he believed to be a great work for man, the father of a philosophy 
which is now current all over the world, should be treated as an out- 
cast ; that Hume and Humboldt should be treated as outcasts ! 
God forbid that I should ever lend my voice for any such purpose ! 
When Theodore Parker, that prophet of God to New 
England, lay dying, literally worn out by his labors for the emanci- 
pation of the human mind, and the relief of the destitute an^d 
perishing, wicked Christians publicly prayed in Boston that a "hook 
might be put in his jaws," but the tears of William and Ellen 
Craft, and many another whom he had helped from bondage, are 
shed on his grave ; and his great collection of books, given to 
Boston to be a part of her public library, renders sacred the memory 
of this unbeliever wherever knowledge is valued. Unbelievers ! 
I heard your Honor, the presiding judge, in language which did you 
and the object of your eulogy equal honor, introduce Ralph Waldo 
Emerson to a Cincinnati audience. The loftiest philosophy of this 
age, this man has written. No word of his will ever bring a blush 
to the cheek of young or old. No word of his, but is a trumpet 
blast, loudly calling to a better life. Alike in poetry and philosophy, 
the first name our literature can present, is of this so-called 
Infidel. 



138 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

But we are told upon the other side that there is no morality 
without religion, and that morality dates from the Bible, and, there- 
fore, we must have the Bible read in our public schools. When 
was this idea invented ? When did this novel proposition emerge 
from the brains of men ? All honor to the Bible ; but morals 
existed before the Bible. Aye, morals existed before the world. 
Right and wrong bind the throne of the Almighty just as much as 
they bind the hearts of men. 

Let me read from Cud worth on Eternal and Immutable Mor- 
ality ^ a book published after his death, edited by a bishop of the 
English church. Let Mr. Ramsey say, as he did of Hume, that 
Cudworth loaded a blunderbuss, and not daring to fire in his life- 
time, left the discharge to after generations. So be it, but its 
report is pertinent to this case : 

" The distinction of right from wrong," says Cudworth, " is 
discerned by reason, and as soon as these words are defined, it 
becomes evident that it would be a contradiction in terms to affirm 
that any power, human or divine, could change their nature, or, in 
other words, make the same acts to be just and unjust at the same 
time." 

And the golden-mouthed Chrysostom teaches the same truth : 

"Another point," says St. John Chrysostom {The Statues^ 
Horn. 12), "which is also demonstrative "of God's providence is, 
that when God formed man He implanted within him from the 
beginning a natural law. And what, then, was this natural law ? 
He gave utterance to conscience within us, and made the knowl- 
edge of good things, and of those which were the contrary, to be 
self-taught. They say that there is no self-evident law placed in 
our consciences, and that God hath not implanted this in our 
nature. But if so, whence is it, I ask, that legislators have written 
those laws concerning marriages, murders, trusts, of not encroach- 
ing on one another, and a thousand other things ? Did such per- 
sons, perchance, learn them from their elders, and they from those 
that were before them, and these again from those beyond ? From 
whom did those learn who were the first originators and first enact- 
ors of those laws ? It is evident that it was from conscience ; for 
they can not say that they held communication with Moses, or that 
they heard the prophets. How could they, when they were Gen- 
tiles? But it is evident, from the very law which God placed in 



Argument of George Hoadly. ijq 

Minor et al. -v. Board of Education of Cincinnati et al. 

man when he formed him, that from the beginning laws were laid 
down." 

Have the gentlemen forgotten the great schools of Ethics, 
which arose before Christ ? and that from one of the stoic poets 
(Cleanthes), St. Paul quoted upon Mars Hill, " For v^ealso are his 
offspring." 

Sir James Mackintosh thus speaks of the controversy between 
the Stoic and Epicurean systems, in his Dissertation on Ethics, 
Encyclopedia Brittanica, vol. i, p. 321. 

"If any conclusion may be hazarded from this trial of systems, 
the greatest which history has recorded, we must not refuse our 
decided though not undistinguishing preference to that noble school 
which preserved great souls untainted at the court of dissolute and 
ferocious tyrants ; which exalted the slave of one of Nero's cour- 
tiers to be a moral teacher of aftertimes, which for the first, and 
hitherto for the only time, breathed philosophy and justice into 
those rules of law which govern the ordinary concerns of every 
man ; and which above all, has contributed, by the examples of 
Marcus Porcius Cato, and of Marcus Aurelius Antoninus, to raise 
the dignity of our species, to keep alive a more ardent love of vir- 
tue, and_ a more awful sense of duty throughout all generations." 

Yes, your Honors, Epictetus, the slave, who never, so far as 
we know, heard of the Bible, is the moral teacher of mankind, 
and Marcus Aurelius, the emperor, in whose reign Christians were 
persecuted as Atheists, is the example, by which "a more ardent 
love of virtue, and a more awful sense of duty is kept alive 
throughout all generations." 

Not many days since, I read a book written by a clergyman, 
Mr. Farrar, called Seekers after God, to prove that the great 
Stoics, Epictetus, Seneca, Marcus Aurelius, were not far from the 
Kingdom of Heaven, so closely do their teachings ally themselves 
to those of Jesus Christ. 

Marcus Aurelius, the emperor: where, your Honors, in the 
rolls which preserve the names of Christian kings, will you find 
his equal? With all its triumphs, Christianity has never produced 
such a monarch. From the camp among the Cjuadi, from the 
clash of arms and the midst of warlike deeds, Marcus Aurelius 
Antoninus thus speaks to this case, to this Court : " From my 



1 40 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

brother Severus," says he (Meditations, book 1), " I learned to love 
my kin, and to love truth, and to love justice ;" * * '* "and 
from him I received the idea of a polity in which there is the same law 
for all, a polity administered with regard to equal rights and equal 
freedom of speech, and the idea of a kingly government which respects 
most of all the freedom of the governed." 

Morality unknown before the Bible ! How happens it then 
that Pagan Rome possessed laws evincing a higher moral sense than 
that of the common law of Ohio to-day, with the Bible forty years 
read in the schools ? Witness the law of implied warranty in sales 
of chattels and the doctrine of caveat emptor* 

* Cicero, de Officii;, lib. 3, sees. 12-17, puts the case of a merchant of 
Alexandria, arriving at Rhodes in a time of scarcity, with a cargo of corn, 
having passed other vessels with corn on the way. May he lawfully sell, 
concealing the fact of their expected arrival ? Pagan Cicero answers in the 
negative. Christian John Marshall in the affirmative. Laidlazo v. Organ, 
2 Wheat. 178. 

"It is a little singular," says Chancellor Kent (2 Commentaries, 10th 
ed., p. 491, note a), "that some of the best ethical writers under the 
Christian dispensation, should complain of the moral lessons of Cicero as 
being too austere in their texture and too sublime in speculation, for actual 
use. There is not, indeed a passage in all Greek and Roman antiquity 
equal, in moral dignity and grandeur, to that in which Cicero lays it 
down as a fixed principle that we ought to do nothing that is avaricious, 
nothing that is dishonest, nothing that is lascivious, even though we could 
escape the observation of gods and men." (De Officii;, 38.) 

In the closing argument for the plaintiff's, to which I have no oppor- 
tunity- of reply, exception was taken to my estimate of the character 
of Marcus Aurelius. I leave that to the candid student of history. It is 
not an open question. If the discussion shall induce a single reader to 
become familiar with the Meditations, or as Mr. Long, in his transla- 
tion, calls them, the Thoughts, of this great man, it will have repaid 
me for my share in the labor of this debate. I have no fears but that, not- 
withstanding my friend's criticism, there will ever shine benignly upon 
the historical student, what Mr. Longfellow calls. 

" The clemency of Antonine, 
Aurelius' countenance di-vine t 
Firm, gentle, still." 



Argument of George Hoadly. 141 

• Minor et al. -v. Board of Education of Cincinnati ct al. 

Your Honors, the Bible itself disputes the statement. What 
says St. Paul (Romans, 2d chapter, verses 14 and 15)? "For 
when the Gentiles, v/hich have not the law, do by nature the 
things contained in the law, those having not the law are a law 
unto themselves; which shew the work of the law written in 
their hearts, their conscience also bearing witness, and their 
thoughts the meanwhile accusing, or else excusing, one another." 

In the human conscience, since it was created, has been writ- 
ten the law of morals, long antedating this book. In saying this, 
I cast no reproach upon the Bible ; God forbid that I should do 

The question how far he was personally concerned in the persecution, 
of Christians, and the death of Polycarp, I have not space to enter upon. 
I do not claim for the character of Marcus Aurelius perfection — only 
superiority to any Christian monarch. One thing must be admitted; 
when their turn to persecute came, the Christians took it. 

Exception was also taken, not to my comparison of the civil with the 
common law in respect of moral dignity, but because it characterized the 
Roman law as Pagan. In this question I have a professional interest, and 
am unwilling to leave the claim of credit to Christians for the superior 
morality of the Roman law, unanswered. The fact is, that the Corpus 
Juris Civilis received its present form, in the sixth century, from the 
Christian emperor, Justinian, or rather from Tribonian, and other law- 
yers, working by his orders, but in substance it is the product of an earlier 
and Pagan age. Law is history crystalized, No deus ex machina has ever 
appeared to dictate it. Justinian was no such magician. Like the com- 
mon law, the Roman law is a growth, not a manufacture. Justinian and 
Tribonian lived, not at Rome, but in Constantinople. The compilations 
of law under Justinian's orders were made between a. d. 528 and 535, 
and it was not until 554 that this emperor reconquered Italy. Dr. Irv- 
ing {Introduction to the Study of Civil Lazv, p. .23), says: "The chief 
splendor of the Roman lawyers is to be traced from the reign of Augustus 
to that of Alexander Severus — and the last name of great celebrity is that 
of Herennius Modestinus. With this pupil of Ulpian, the oracles of the 
civilians became mute; the succeeding lawyers are only known as com- 
pilers or expounders; and although the law was long afterward taught at 
Rome, Constantinople and Berytus, we can not, in those declining annals, 
discover any vestiges of ancient genius." Savigny {History of the Roman 
Law, Cathcart's translation, vol. i, p. 13), speaking of the work done under 
Justinian's orders, says: "Original genius was, indeed, denied to this age, 



142 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

so ! I am here to say that moral philosophy antedates the Bible. 
It is found, not in the arbitrary will of an arbitrary Deity, but in 
the just will of a righteous Deity, who could not have created 
wrong to be right, and right wrong, omnipotent though he be. 

Why, your Honors, my friends have unconsciously reproduced 
the old heresies of the Nominalists, William of Ockham and John 
Gerson, who taught what Sir James Mackintosh calls "that most 
pernicious of moral heresies, which represents morality to be founded 
on will," the arbitrary will of God. Fortunate, very fortunate, 
was it for the cause of practical morality that both the church 
and the schools espoused the opinions of St. Thomas Aquinas : 
" Goodness he regarded as the moving principle of the Divine 
Government; justice as a modification of goodness, and with all 
his zeal to magnify the sovereignty of God, he yet taught, that 
though God always wills what is just, nothing is just solely because 
He wills it" And with a wise forecast, the sweep of whose 

and the law-sources to be consulted by Justinian's compilators belonged to 
a foreign" (J. e. Roman, not Byzantine), " and cultivated people, and 
were not to be found in the original literature of the Eastern empire," 
Judge L. S. Gushing (Introduction to the Study of Roman Law, p. 86), 
speaking of the growth of the law at Rome, says : " Out of the jurispru- 
dence which was thus formed around the fragments of the great Roman 
jurists, preserved in the compilations of Justinian, have been extracted in 
modern times much of the material for the French and other codes of 
positive law." 

The Corpus Juris Civilis consists : First, Of the Code, which is a com- 
pilation from the edicts and rescripts of the emperors, Pagan and Chris- 
tian, from Hadrian to Justinian, and from the codes of two private 
lawyers, Gregorius and Hermogenianus, and the Emperor Theodosius II, 
themselves compilations from earlier sources. Secondly, Of the more 
important work, the Digest or Pandects, which is a general digest of legal 
science, in fifty books, from the writings of those lawyers who enjoyed 
the highest authority in the forum. " The work," says Dr. Irving, p. 
53, "contains a very copious collection of legal principles and legal dis- 
cussions, exhibiting one of the most remarkable specimens of ancient 
genius and ancient wisdom." In it are extracts from the great lawyersof 
Pagan Rome to the following numbers, viz: From Ulpian, 2461 ; Paulus, 
2087; Papinian, 596; Pomponius, 588; Gaius, 536; Julian, 457. 



Argument 'of George Hoadly. 143 

Minor et al. -v. Board of Education of Cincinnati et al. 

vision embraced the clangers of interference by the civil power 
with things spiritual, foreseeing cases like this in hand, St. Thomas 
Aquinas "allowed to the church a control only over spiritual con- 
cerns, and recognized the supremacy of the civil power in all 
temporal affairs." 

I accused my friends of pleading for persecution. Any inva- 
sion of the rights of another, done of purpose, is persecution. 
Any invasion of the rights of others, by large bodies, is none the 
less persecution ; and when these rights are rights of conscience, 
it is persecution, and the men who suffer from it feel it as persecu- 
tion the moment their attention is addressed to it. The moment 
that a Jew becomes aware that his taxes are appropriated to a form 
of worship alien to his faith, and which teaches its falsehood, he is 
persecuted, and it is only a question of time and humanity whether 
those who persecute him shall be persuaded to persecute him more. 

Thirdly, The Institutes, which are a mere revision of the institutes of the 
Pagan lawyer Gaius or Caius. Fourthly, The Novella, or New Consti- 
tutions, viz : changes made by Justinian after the publication of the Code, 
Digest and Institutes. Judge Cushing (p. 109), says: "The merit of 
accomplishing a great and useful work must be ascribed to Justinian. But 
he can not be regarded as the originator of the plan upon which his 
reforms were effected. For his Code, he had before him as models, the 
Gregorian, Hermogenian and Theodosian; for the Digest, the great jurists 
had already furnished him with examples in the various works of the same 
kind executed on a more limited plan, and especially the works of Julian 
on the edict; and for his Institutes, he not only borrowed the plan, but 
actually appropriated, as he himself states, the work itself, of Gaius." 

Of the eminent jurists of Heathen Rome, the first in authority was 
Papinian, who was advocatus jisci, or as we should perhaps say, solicitor 
of the treasury, of the Emperor Marcus Aurelius. Near him in rank 
was Ulpian. I can not close this note without quoting from Wendell 
Phillips' oration called " Idols," the following passage : " Rome points to 
a colossal figure, and says : ' That is Papinian, who, when the Emperor 
Caracalla murdered his own brother, and ordered the lawyer to defend 
the deed, went cheerfully to death, rather than sully his life with the 
atrocious plea ; and that is Ulpian, who, aiding his prince to put the army 
below the law, was massacred at the foot of a weak but virtuous throne.' " 

Christian brethren, who think all morality derived from the Bible 
which one of us would have done and suffered as Papinian did ? 



144 Superior Court of Cincinnati. 

Minor et al. <v. Board of Education of Cincinnati et al. 

The Constitution of the State of Ohio saves him, or the Catholic, 
or the Protestant, from any other kind of persecution, but if we 
admit, as a principle, that the State has concern with things spirit- 
ual, then we have only to wait till some one of the large religious 
bodies, believing that the State has concern with things spiritual, is 
willing to exercise that concern, and we have — I know not what. 
We may have the infallibility of the Pope or of Ecumenical Coun- 
cils taught in our schools, and the. linking together of Church and 
State. Perhaps at the next meeting to revise the Constitution of 
the State of Ohio, in 1871, we shall have something of that kind. 
It is true that Thomas Jefferson brought about the adoption of the 
first amendment to the Constitution of the United States, which 
provides that Congress shall pass no law creating an established 
religion. Mr. Jefferson came home from France full of resent- 
ment because no Bill of Rights had been adopted, full of the feeling 
of the necessity of such provisions ; full, also, of the idea of State 
rights, and he aided those who; wished for amendments, and the very 
first amendment they procured begins: "Congress shall make no 
law respecting an establishment of religion, or prohibiting the free 
exercise thereof." This does not prevent, was not designed to 
prevent, the States from creating church establishments. 

As I said before, Church and State were allied in Connecticut 
until 1819. What is there to forbid a church establishment in 
Ohio, but the provisions of our State Constitution, which can be 
changed in another year ?. Nothing can prevent it if the majority 
will it. Nothing will restrain that majority but the growth of the 
idea in the public mind that the State has nothing to do with things 
spiritual. And when that idea is once so worked into every Cath- 
olic and Protestant mind by the practices and habits and usages of 
years, and by the happy life that all faiths will lead under it, then 
we will be safe. I am told that in the city of New York the 
Catholics have acquired a majority, and the consequence is they 
are voting large amounts of the people's money for the support of 
Catholic institutions ; and in the Catholic World it is upheld on the 
ground that it was done long before by the Protestants, when they 
were in power. What is' to save our schools from control of this 
kind ? Will constitutional provisions do it ? They are at the 
mercy of the people. Nothing will do it but the belief in the 



Argument of George Hoadly. 145 

Minor et al. i>. Board of Education of Cincinnati et al. 

minds of the American people that the State has no concern with 
things spiritual, and when they do believe that, there is no danger. 

There is no safety in this country except in an enlightened 
public opinion, based on individual intelligence. When we have 
that, we have all we ever can get. 

What will my friend, whose opening argument so forcibly 
represented the plaintiffs' desire that religion shall be taught in the 
schools, with appropriate singing, say, when St ah at Mater Dolorosa, 
or some other Catholic hymn, shall be chanted there. What will 
he say when his children report to him that the public school- 
rooms are decorated with images of Saints; that Ave Marias, 
instead of Bible readings, usher in the day; that among the things 
taught to his little ones is. the corporeal assumption of the Virgin 
Mary — which, we are told, is about to be discovered as a fact in 
history in the coming Ecumenical Council ? He would character- 
ize it by the same name that I am using — persecution. If a 
majority of our community should become Israelites, and should 
banish the New Testament and use the Old, and in Hebrew, and 
the children of my friend, untaught in Hebrew, be compelled to 
listen to it, would he not call that persecution ? 

The disciples of Emanuel Swedenborg are another body who 
read this book in a different way from the larger denominations ; 
who read it as it were, " between the lines," who discover in it 
things that the eye of man had not seen, nor the ear of man heard, 
until Swedenborg had attained the age of fifty years, and was illum- 
inated with Divine light. Suppose the Swedenborgians should 
obtain the control of our schools, and not believing that the 
Church has no concern with things temporal, or the State with 
things spiritual, teach Swedenborgianism, instruct the children of 
Unitarians that Jesus Christ is God the Father, or proclaim to 
believers in Calvinism what Swedenborg saw, or says he saw, viz : 
John Calvin in perdition. 

What would my friend Matthews and his co- religionists say to 
instruction of that kind in the public schools ? They would call it 
persecution. Comte has left behind him a philosophy called " Positiv- 
ism," which prevails largely in England and to some extent in this 
country. He left behind him a religious denomination which con- 
sists in worshiping collective humanity. In other words, which 



146 Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati it al. 

teaches that Deity comes to consciousness only in man. God is 
life, and God is consciousness, only in man, and in the men who 
have gone before- us. They aggregated are God, and are to be 
worshiped. Comte left behind him a liturgy for his church. I 
should like toknow how my friends would like to have that liturgy 
expounded in our public schools ? 

There is but one safe course consistent with the progress of 
right and religion, and that is, total abstinence from interference by 
the State. I may be an Atheist, a Pantheist, a Positivist, a Theist, 
or a Deist, or any other of the various sects of unbelievers ; I am 
responsible to God, and not to this Court, or any human tribunal, 
and the State of Ohio can not call me to account. It can not 
touch a dollar of my money, or trample upon my conscience. That 
is just as sacred as that of the most devout believer, and the most 
devout believer has no right, no safety, except in establishing my prin- 
ciple. Having established a principle that he may intrude upon that 
which is mine, he sets me an example which will be very apt to lead 
me to intrude upon that which is his. Abraham Lincoln once wrote 
that he who wishes to be free himself must be content to allow 
others to be free also. True and wise words, whether applied to 
chattel slavery, or to spiritual bondage. 

The ages in which the Calvinist persecuted the Armenian, the 
Catholic the Calvinist, the Episcopalian the Catholic, and the 
French Catholics the Huguenots, have passed away, and given 
place to a time more favorable to religion, just in proportion as it is 
more free. 

Your Honors : I have cause to lament my inadequacy to the 
theme ; none whatever to regret the inadequacy of the theme 
itself. It is a cause wherein great benefactors of mankind have 
been proud to participate. Shall I feel otherwise than hon- 
ored to be allowed to lift up my voice, however feebly, in its 
behalf ? 

My friend, of whose political philosophy Thomas Jefferson is 
the author, reproached that great man's memory yesterday because 
of his religious views. Jefferson, who so fully entered into the 
spirit of the founder of Christianity, that he copied into a manu- 
script volume, for his own private use, all the ethical precepts of 



Argument of George Hoadly. 



H7 



Minor et al. -v. Board of Education of Cincinnati et al. 



Jesus, left to be engraved upon his tomb this epitaph, enumerating 
what he regarded as his three principal services to mankind : 

" Here lies buried 

Thomas Jefferson, 
Author of the Declaration of Independence; 
Of the Statute of Virginia for Religious Freedom ; 
And father of the University of Virginia." 

Freedom of the State! freedom of the soul ! freedom of educa- 
tion ! Just what we here contend for. 

Give us deliverance from all bonds binding Church to State, 
or State to Church : — total abstinence by the civil officer from 
interference in things spiritual ; and you have secured all help that 
can be had in your coming contest with those who shall contend 
for the exclusive control of the schools by denominations. You 
secure the principle which shall prevent intrusion upon liberty of 
conscience, and you obey the precept of the Constitution of the 
State of Ohio as expounded by the highest tribunal. 

I have one more proposition to make. The Constitution of 
Ohio provides " that no religious or other sect or sects shall ever 
have any "exclusive right to or control of any part of the school 
funds of this State." What is it that is here claimed but the exclusive 
control of the school fund for Evangelical Protestants ? And we 
are coolly told that the Catholics are trying to get control of the 
schools by men who have already secured it for themselves. 

My friend, the Hicksite Quaker, comes to me and says : 
" My conscience is offended. I am practically excluded, or com- 
pelled to submit to persecution in the enjoyment of the right to the 
public schools for my children." My friend, the Catholic, says: 
" I am practically excluded, because my church has taught me that 
the interpretation of the Scriptures is committed to a class of men 
who are ordained, and whose ordination is regarded as a sacrament, 
and here it is read by unanointed lips. I am excluded from the 
public schools, or am compelled to submit to persecution as a con- 
dition of enjoyment." My friends, the Israelites, whose three Rab- 
bis here have expounded this subject from the pulpit, come to me 
and say : " We are practically excluded from the benefits of this 
system, unless we submit to persecution as a condition of enjoying 
it, for our children are exposed to the danger of being taught that % 
which their parents do not believe as a condition of being taught 



148 Superior Court of Cincinnati. 

Minor et al -v. Board of Education of Cincinnati et al. 

secular knowledge." Judge Stallo and I come with our pastor and 
complain that the Bible, which we hold to be a most sacred, aye, 
a religious duty to study by the light of reason, is used as a sort of 
fetish, and we are compelled to permit our children to listen to 
that paganism or withdraw them from the schools. 

Where does this leave the schools, but practically in the con- 
trol of the remaining sects ? No wonder they are willing to con- 
tend for the continuance of this control they have usurped. 
Having made the schools nurseries, propaganda of their faith, they 
seek so to continue them. But in the effort, what becomes of the 
Constitution of the State, which says that " no religious or other 
sect or sects shall ever have any exclusive right to or control of any 
part of the school funds of this State ? " 

Reference is made in the petition to the ordinance of 1787, 
as if in it were to be found some excuse for this attempt made by 
the plaintiffs to discourage the education of the children of Cath- 
olics, Israelites and Heretics. But even if that ordinance would 
bear such construction, it is only necessary to refer your Honors to 
the case of Strader et al. v. Graham, 10 Howard, 82, in which it 
was decided by the Supreme Court of the United States that the 
ordinance of 1787 was superseded by the Constitution of the 
United States ; that any force it had after that time was derived 
from the legislation of Congress, which in time was superseded by 
the admission of the several new States, with constitutions of their 
own forming. 

As I said before, my own inadequacy is great, but the cause is 
not inadequate. It can not be that he who to-day, in Ohio, 
pleads for the severance of Church and State, can be wrong. He 
who, with Judge Thurman and the Supreme Court, contends that 
the State has no authority in things spiritual, must be right. Upon 
this rock are our spiritual liberties founded. Here will we, in the 
spirit and the words of Luther, "take our stand. We can not do 
otherwise. So help us God." 

Note to the case of George Busby, page 000. — For the form of the 
writ de heretico comburendo, as executed by Protestants upon Protestants, 
see the cases of Bartholemew Legatt and Edward Wightman, burned to 
, death in 16 12, for heresy, being Arians and deniers of the Trinity 
reported in 2 Cobbett's State Trials, page 727. 



Argument of George R. Sage, 

Counsel for Plaintiffs 



May it Please Your Honors — The plaintiffs allege that 
they bring their action on behalf of themselves and many others, 
citizens and tax-payers of the city of Cincinnati, the defendants, 
that they represent the views and opinions, not only of them- 
selves, but of many others, also citizens and tax-payers of the city 
of Cincinnati. The truth of these allegations is admitted. The 
questions involved in the action are of a public and highly import- 
ant character, and involve principles and rights justly held dear by 
us all. It is proper that the discussion be conducted with decorum 
and dignity, that it be based upon the facts and the law, and that 
we be not carried beyond either by individual prejudices or opin- 
ions. 

Your Honors suggested, at the opening of the argument, that 
it would be proper for us to inquire what religion is meant by the 
declaration, in the Constitution, that "religion is essential to good 
government," To that question I propose, first, to address myself, 
and I claim that the religion referred to is that religion which is 
founded in a belief in the Being, Attributes and Providence of 
Almighty God, and in the Holy Bible, as the revelation of His 
will to mankind. The expression of gratitude to God in the pre- 
amble of the Constitution, and the declaration of the right of all 
men to worship Him according to the dictates of their own con- 
sciences, seem to me to put this proposition beyond doubt or cavil. 
But there are one or two facts outside the Constitution itself which 
remove all question upon this point. The first of these is, that 
11 



150 Superior Court of Cincinnati. 

Minor et al. •v. Board of Education of Cincinnati et al. 

there is no other religion known any where on earth which can be 
observed in all its requirements within the State of Ohio without 
conflict with the statute law, and that which has been the statute 
law from the beginning. The Hindoo mother, in the fervor of 
her religious enthusiasm, can not sacrifice her babe without being 
guilty of infanticide, nor can she plead the rights of conscience 
against the penalty of the law. The Mohammedan can not here 
put into practice his religious belief, nor the Mormon, with regard 
to polygamy, without being subject to indictment and punishment. 
Even the Atheist may not blaspheme the name of God, or of Jesus 
Christ, or of the Holy Ghost, whatever may be his opinions, with- 
out coming within the prohibitions provided by the statute. On 
the other hand, compliance with the teachings and requirements of 
the Christian religion is all that is necessary to make a perfect citi- 
zen. Whatever makes a man a good Christian, makes him a good 
citizen ; and this, because the government is founded upon and is 
consistent with Christianity in all its departments and laws. This 
recognition of religion and of God necessarily implies the recogni- 
tion of the Holy Bible, because from no other source can a knowl- 
edge of the being and attributes of God or the truths of religion 
be derived. 

My friends have referred to the, traditions upon which the 
Jews depend, and from which the Catholic derives a portion of his 
faith. If they intend to intimate that the Jew or the Catholic 
makes tradition superior to the Bible they are in error. There is 
no religious tenet held by any intelligent, conscientious Catholic, 
nor by any intelligent and conscientious Jew, for which he is not 
ready to refer to the Bible for authority and proof; that is the 
foundation, and the traditions come in merely as aids or supports 
in their opinion of that which is taught in the book itself. The 
Bible being the exposition, therefore, of revealed truth, is the 
foundation of religion. 

There can be no religion without the Bible. The Bible is 
essential to religion, and religion is essential to good government, 
and both are, therefore, under the protection and fostering care of 
the government. This constitutional recognition of religion is a 
recognition of its truth and divine origin. It is impossible to sup- 
pose that the government, having in its fundamental law declared 



Argument of George R. Sage. 151 

Minor et al. -v. Board of Education of Cincinnati et al. 

religion to be essential, can at the same time, admit that it may be 
false or of human origin, or any thing else than it purports to be. 
It follows as a legal proposition that the truth and inspiration of the 
Holy Scriptures, and the divinity of the religion which they teach 
are not to be questioned in a court of justice. 

For all purposes of the State and of justice, the presumption 
in favor of the truth of the Bible, and of the religion of the Bible, 
is conclusive. Upon this proposition the decision by the Supreme 
Court of the United States, in the case of Vidal et al. v. Girard's 
Executors, 2 Howard's Reports, is exactly in point. I read from 
page 198 : 

" It is also said, and said truly, that the Christian religion is a 
part of the common law of Pennsylvania. But this proposition is 
to be received with its appropriate qualifications, and in connection 
with the Bill of Rights of that State, as found in its Constitution of 
government. The Constitution of 1790 (and the like provision will, 
in substance, be found in the Constitution of 1776, and in the 
existing Constitution of 1838), expressly declares 'that all men 
have a natural and indefeasible right to worship Almighty God 
according to the dictates of their own consciences; no man can of 
right be compelled to attend, erect, or support any place of wor- 
ship, or to maintain any ministry against his consent ; no human 
authority can, in any case whatever, control or interfere with the 
rights of conscience ; and no preference shall ever be given by 
law to any religious establishments or modes of worship.' Lan- 
guage more comprehensive for the complete protection of every 
variety of religious opinion could scarcely be used ; and it must 
have been intended to extend equally to all sects, whether they 
believed in Christianity or not, and whether they were Jews or Infi- 
dels. So that we are compelled to admit that, although Christianity 
be a part of the common law of the State, yet it is so in this qualified 
sense, that its divine origin and truth are admitted, and therefore it 
is not to be maliciously and openly reviled and blasphemed against 
to the annoyance of believers, or the injury of the public. Such 
was the doctrine of the Supreme Court of Pennsylvania in TJpde- 
graffv. The Commonwealth, 11 Serg. & Rawle, 394." 

The Court will observe that the provisions of the Bill of 
Rights of the State of Pennsylvania are no stronger or more 
explicit than those of our own Bill of Rights, and we have, in 
addition, the emphatic declaration that religion is essential to good 



152 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

government. The Court will also observe that the recognition of 
the truth and divinity of the Christian religion is regarded by the 
highest judicial authority of the land, as entirely consistent with 
the complete protection of every variety of religious opinion, and 
perfect liberty to all who believe and all who disbelieve in Chris- 
tianity. 

This recognition of Christianity — and I wish to say that I 
use that term in a very broad sense, as meaning the religion of the 
Bible, not in any limited or narrow sense — this recognition of 
Christianity or the religion of the Bible, results from propositions 
which are at the foundation of and necessary to the constitution and 
stability of society. 

De Quincey says : "As is the god of any nation, such will be 
that nation. God, however falsely conceived of by man, even 
though splintered into fragments by Polytheism, or disfigured by 
the darkest mythologies, is still the greatest of all objects offered to 
human contemplation." No nation exists in our time, no nation 
has existed in times past, without a religion, and that religion the 
basis of its distinctive national character. We have all heard of 
the wise man, quoted by Fletcher, of Saltoun, to the effeGt "that 
if he was permitted to make all the ballads he need not care who 
should make the laws of a nation." Much more true is it that if 
you be informed what is the religion of a nation, you can with cer- 
tainty describe the general character of its laws and institutions. 

Religion is, always has been, and always will'be, the great con- 
servative element of national life. It can not be otherwise. Show 
me a people without religion and I will show you a people without 
government, without laws, without civilization, without national life. 
Take away all religion, and you leave only barbarism. Now, upon 
this proposition, that religion stamps the civilization and the char- 
acter of the nation, I wish to read from an authority which may, 
perhaps be recognized as such by some of my friends. I mean 
Edward Everett, in his address before the Massachusetts Bible 
Society, on the 27th day of May, 1850. It is to be found in vol. 
ii, p. 664, of his works : 

" There is another consideration of a practical nature which I 
should be glad to offer to the meeting, if I have not exceeded my 



Argument of George R. Sage. 153 

Minor et al. -v. Board of Education of Cincinnati et al. 

allowance of time. We all have pretty strong, and, as I think, 
just impressions of the superiority of Christendom over Moham- 
medan, Hindoo and Pagan countries. Our civilization, I know, is 
still very imperfect, impaired by many a vice which disgraces our 
Christian nurture — by many a woe which 

' Appears a spot upon a vestal's robe, 
The worse for what it soils.' 

But when we compare the condition of things in Christendom with 
that which prevails in the countries just named, we find that all the 
evils which exist among us prevail there to a greater degree, while 
they are subject to innumerable others, so dreadful as to make us 
almost ready to think it were better for the mass of the people, 
humanely speaking, if they had never been born. Well, now, Mr. 
Chairman, what maketh us to differ ? I know of no final and suf- 
ficient cause but the different character of Christianity, and the 
religions which prevail in Turkey, Persia, India, China, and the 
other semi-civilized or barbarous countries, and this difference, so 
far as I know, is accurately reflected in their sacred books respect- 
ively. 1 mean, sir, that the Bible stands to the Koran and the 
Vedas in the same relation as that in which Christianity stands to 
Mohammedanism, or Brahamism, or Buddhism, or Christendom to 
Turkey, Hindostan, or China." 

I shall not attempt to follow my learned friends on the 
other side, who have preceded me, through the mazes of learning 
which they have threaded in their arguments. I do not propose 
to discuss the truth of the Bible or the Christian religion as a 
theological proposition. I lay it down, and I think I have estab- 
lished that, as a legal proposition, both are true for all purposes 
of the State and of this case. But I will say that if the gentlemen 
on the other side, will, all of them, agree upon any proposi- 
tion against the authority, or the authenticity of the Holy Scrip- 
tures, or upon any proposition of morals not derived from the 
Scriptures, to be preferred thereto, or substituted therefor, I will 
engage that my colleague, Mr. King, will give to either proposition 
such attention as may be necessary for the purposes of this case ; 
but if they can not so agree we shall be content to leave them to 
the fate of a house divided against itself. 

It is a great mistake to suppose that our National or State 
Government is indifferent to or divorced from religion. Every 



154 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

government depends for its support upon main strength or upon the 
consent of the governed. No government of strength, not even a 
despotism, can safely come in conflict with the religion of its 
people. This proposition has been so well understood that it has 
been the universal practice of such governments to adopt the pre- 
vailing religion, and make it an ally of the State. No government 
which depends upon the will of the people can, by any possibility, 
disregard or oppose the religion of the people. Especially is this 
true of a representative government such as ours. The morals of 
the people are derived from and depend upon their religion. The 
sense of right and wrong of the people is a religious sense. Their 
sense of duty to the State is derived from and subordinate to their 
sense of duty to their religion. And this moral, this religious 
sense of the people is, and always will be, reflected in the legisla- 
tive, in the judicial and in the executive departments of the gov- 
ernment. 

Hence it is that the violation of the Christian Sabbath is 
forbidden by law — hence blasphemy against God, Jesus Christ or 
the Holy Ghost is made a statutory offense, and the requirements 
and prohibitions of religion touching the dealings of man with his 
fellow man are adopted by legislation or enforced by the courts as 
a part of our system of jurisprudence. Thus the commandments 
of the Decalogue which relate to the duty of man to man are 
reflected in the statute laws of Ohio. The whole doctrine of 
charities, as administered by the courts of equity, is an emanation 
from the Christian religion, and was unknown throughout all the 
v/orld till the first dawn of Christianity; and the same is true as to 
our reformatory and benevolent institutions. Even the Golden 
Rule is reflected in that maxim of equity : " He who seeks equity 
must do equity." The inauguration of our Executive is always 
preceded by religious exercises. The sessions of our legislative 
assemblies are opened with prayer. Every year the people are 
called upon by the highest authority of the State, seconding the 
proclamation of the Executive of the nation, to render thanksgiving 
to Almighty God for the blessings and prosperity they have enjoyed ; 
and when famine, pestilence or war afflicts the nation, the people 
are called upon to humble themselves in fasting and prayer. And 
when we turn to the Constitution itself, we find the solemn declara- 



Argument of George R. Sage. 155 

Minor et al. -v. Board of Education of Cincinnati et al. 

tion that religion is essential to good government; a declaration so 
emphatically true that if Christianity were stricken from our Con- 
stitution and laws, its sanction and influence withdrawn from the 
affairs of the State, hopeless anarchy and confusion would result. 
Thus we see that Christianity has formed the State in its own 
image, and yet we are told upon authority of the dictum of a 
judge of the Supreme Court of Ohio that Christianity is no part 
of the law of the State. I do not propose to discuss that proposi- 
tion at length. That has been assigned to my colleague, who will 
close the argument for the plaintiffs. But I wish merely to say 
that I recognize the decision in the case of Bloom v. Richards as 
sound law. The proposition that Christianity is no part of the law 
of the State, so far as it was applicable to that case, I recognize as 
exactly correct; but in so far as Judge Thurman has gone beyond 
that, and undertaken to dispose of Christianity, or put it away 
from the State, his decision is entitled to no more regard, and is 
no more authority, than what is called the Died Scott decision. 
We do not claim that Christianity is part of the law of the State 
of Ohio, as it may be said to be part of the common law of 
England. We call no one into court to answer for any infraction 
of the precepts of the Bible unless we find a statutory provision, 
or a recognized provision of law which meets the case. But what 
we claim is that the influence, sanction and authority of religion 
are recognized by the State ; that religion is recognized by the 
Constitution itself as the bond of society, the basis upon which our 
institutions rest, and essential to good government and the safety 
of the State. 

But the Constitution declares that religion is essential to good 
government, and in the same sentence requires the establishment 
of common schools. Waiving, for the present, the question 
whether this proposition is connected with the establishment of 
schools, what is its meaning, and what its application? It is not 
an abstract proposition. Our constitutions are not so made up. 
Every proposition, every sentence, has its meaning, its import and 
its force, and a practical bearing in connection with the affairs of 
the State. It does not mean simply that religious worship and the 
rights of conscience shall be protected, for there are in the same 
section of the Bill of Rights ample and specific guarantees for 



156 Superior Court of Cincinnati. 



Minor et al. -v. Board of Education of Cincinnati et al. 



both, and those guarantees are, moreover, for the citizen, while 
the proposition that religion is essential to good government is for 
the State. It does not mean that it is necessary that there should be 
an established church, for that is expressly forbidden; nor does it 
mean that any form of religious belief shall be forced upon the 
citizen; for the right of all men to worship Almighty God accord- 
ing to the dictates of their own consciences is declared to be a 
natural and indefeasible right. 

We may perhaps derive some light upon this subject by con- 
sidering that not merely religion, but religion, morality and knowl- 
edge, are, by the terms of the Constitution, declared to be essential 
to good government. As to knowledge, we understand that it is 
essential that it be generally diffused among the citizens. We 
have the same understanding as to morality. Can we then come 
to any other understanding as to religion? The provision of the 
Constitution that religion is essential to good government, properly 
interpreted, is then an announcement that it is necessary to the 
welfare of the State that religion shall pervade society — that it be 
recognized, and its influence felt by the citizens. That this is the 
true meaning of the provision is apparent from the consideration 
already adverted to, that our laws are in harmony with religion, 
and derive their greatest power and efficacy from the religious sen- 
timent. There is nothing enjoined by law which is not in accord- 
ance with and sanctioned by the teachings of religion. There 
could be no law framed by the legislative authority of the State of 
Ohio in conflict with the religious sentiment that could stand or be 
enforced for one day. Suppose, for instance, the General Assem- 
bly should this winter enact that the work upon the roads through- 
out the State should next spring be done upon the Sundays of a 
certain month. Of what force would be such a law? 

Mr. Mattheivs. Do you mean that it would be unconstitutional ? 

Mr. Sage. Certainly I do. 

Judge Storer. I hope that point will be argued. 

Mr. Sage. It would be in direct conflict with the propositions 
I have stated. It would be a palpable violation of the duty 
imposed by the Constitution upon the General Assembly, " to pass 
suitable laws to protect every religious denomination in the peace- 
able enjoyment of its mode of worship." It would be a flagrant 



Argument of George R. Sage. 157 

Minor et al. -v. Board of Education of Cincinnati et al. 

outrage upon the right of conscience guaranteed by the Constitu- 
tion, to undertake by legislative enactment to force the citizen, on 
the day set apart as holy by his religion, from that worship to com- 
mon labor. It would not only be unconstitutional, but it would be 
suicidal, for the State thus to attack religion. 

We have no morality which is not enjoined by religion. We 
have no rule of conduct prescribed by law touching the dealings 
of man toward his fellow man, or by the State, which is not to be 
found more explicitly and more forcibly commanded by the Divine 
Author of that religion. And as the true strength of the Govern- 
ment is its reliance upon the intelligence, patriotism and moral 
sense of the citizens, it is indispensable that religion, which is the 
basis of that virtue, patriotism and morality, should be encouraged, 
and its elementary truths made known to the people. 

It is only in Christian nations that what we understand by the 
majesty of the law is recognized and felt in the administration of 
justice and the conduct of public affairs, and no where upon earth 
is that majesty so exemplified as in these United States of America. 
It is Christianity which gives to the law that power and majesty 
which enables the General Government to enforce its requirements, 
to collect its revenues and to administer its affairs in this great 
State of Ohio, without the presence or aid of a single soldier in 
arms. It is Christianity and the influence of Christianity which 
gives to the State Government a power, limited and measured only 
by the aggregate strength of the people, and which enables it by 
the aid of its executive and ministerial officers to preserve order, 
protect life and property, and regulate society, without even the 
semblance of military power. It is Christianity that renders this 
service vital and effective, and for the reason that the religious 
sentiment is the prevailing sentiment, and the basis of the morality 
of the State, on which basis alone moral habits can safely be 
trusted, and the Government be secure. It is, therefore, the duty 
of every good citizen, as a citizen, whether he be or not a believer 
in Christianity, to give it his countenance and support as the strong 
arm and main reliance of the State. The conscience of Christianity 
is more potent as a police agent than the standing army which 
enforces the will of the most powerful despot. Upon this subject 



1 5 8 Superior Court of Cincinnati. 

Minor tt al. -v. Board of Education of Cincinnati et al. 

the words of Daniel Webster, in his oration at Plymouth on the 
settlement of New England, are significant and pertinent : 

" Lastly, our ancestors established this system of government 
on morality and religious sentiment. Moral habits, they believe, 
can not safely be trusted to any other foundation than religious 
principles, nor any government be secure which is not supported by 
moral habits. Living under the heavenly light of revelation, they 
hoped to find all the social dispositions, all the duties which men 
owe to each other and to society, enforced and performed. What- 
ever makes men good citizens makes them good Christians." 

I refer also to the case of Lindenmuller v. The People, 33 
Barbour's Supreme Court Reports, N. Y., 548 ; a case upon 
an indictment for an alleged violation of the Christian Sabbath. 
The Court decided that " Christianity is not the legal religion of 
the State as established by law," but that the provisions and recitals 
of the Constitution, which are the same in effect as those of the 
Constitution of Ohio, " very clearly recognize some of the funda- 
mental principles of the Christian religion, and are certainly very 
far from ignoring God as the Supreme Ruler and Judge of the 
Universe, and the Christian religion as the religion of the people, 
embodying the common faith of the community with its ministers 
and ordinances, existing without the aid of, or political connection 
with, the State, but as intimately connected with a good govern- 
ment, and the only sure basis of sound morals." Again: "The 
public peace and public welfare are greatly dependent upon the 
protection of the religion of the country, and the preventing or 
punishing of offenses against it, and acts wantonly committed sub- 
versive of it. The claim of the defense, carried to its necessary 
sequence, is, that the Bible and religion, with all its ordinances, 
including the Sabbath, are as effectually abolished as they were in 
France during the Revolution, and so effectually abolished that 
duties may not be enforced as duties to the State, because they have 
been heretofore associated with acts of religious worship, or con- 
nected with religious duties." 

So in the case of The People v. Ruggles, 8 Johnson's Reports, 
291, Chief Justice Kent says that to revile the religion professed 
by almost the whole community is an abuse of the right of relig- 



Argument of George R. Sage. 159 

Minor et al. v. Board of Education of Cincinnati et al. 

ious opinion and free discussion secured by the Constitution, and 
that the Constitution does not secure the same regard to the 
religion of Mahomet, or of the Grand Lama, as to that of our 
Savior, for the plain reason that we are a Christian people, and the 
morality of the country is deeply engrafted upon Christianity. 

So, too, in the debates in the Constitutional Convention of 
New York, in 1821, such men as Chancellor Kent, Chief Justice 
Spencer, Rums King, and Martin Van Buren, agreed that the 
Christian religion was engrafted upon the law, and entitled to pro- 
tection as the basis of our morals and the strength of our Govern- 
ment. 

The same principles were announced by the Supreme Court 
of Pennsylvania, in XJpdegrajf v. The Commonwealth, 1 1 Serg. & 
Rawle, 394 ; and in Massachusetts, in The Commonwealth v. Knee- 
land, 20 Pickering, 206 ; in Arkansas, in Show v. The State, 5 
Eng. 259 ; and in Delaware, in the case of The State v. Chandler, 
1 Harrington, 553. 

But there is another principle which is fundamental and vital 
to our system of government, and of the first importance to the 
purity and influence of religion. It is that the conscience of the 
citizen shall be as free as if the government were not in existence. 
It is a mockery to talk of the liberty of men whose consciences are 
in fetters. There is no slavery more abject than the slavery of 
opinion or conscience. Liberty, without liberty of soul, is liberty 
stripped of all that makes it valuable — it is a cheat and a delusion. 
To make a man free, the whole man, soul, mind and body must be 
free, and whatever is in conflict with this proposition is in conflict 
with everything dear to the true citizen and the true Christian. 
Mr. Webster, in the oration to which reference, has already been 
made, says : " The love of religious liberty is a stronger sentiment, 
when fully excited, than an attachment to civil and political free- 
dom. That freedom, which the conscience demands, and which 
men feel bound by their hope of salvation to contend for, can 
hardly fail to be attained. Conscience in the cause of religion and 
the worship of the Deity prepares the mind to act and to suffer 
beyond most other causes. It sometimes gives an impulse so irre- 
sistible that no fetters of power or of opinion can withstand it. 
History instructs us that this love of religious liberty — a compound 



160 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

sentiment in the breast of man, made up of the clearest sense of 
right, and the highest conviction of duty — is able to look the stern- 
est despotism in the face, and, with means apparently most inade- 
quate, to shake principalities and powers/' 

These propositions, in all their force, are recognized by our 
Constitution, and the liberty of conscience referred to is the right 
of every man, woman and child, of every creed, or of no creed, 
of every condition and station, and of every birth, native or foreign. 
And this right is a natural and indefeasible right. It can not, 
under any circumstances, be abridged, or nullified ; the whole 
power of the State can not interfere with it, nor can the State make 
any movement, directly or indirectly, in conflict with it, under any 
pretext or for any purpose. And although religion is declared to be, 
and is, essential to good government, the State can not foster or 
encourage religion by any means which in the least violate the right 
of any individual conscience. On the other hand, whatever the 
State can do in this regard without violating that right, it not only 
may do, but is bound to do — not for the advancement or benefit of 
religion, but for its own safety and welfare — and every Board of 
Education, and every officer of the State, is under the same imper- 
ative obligation. 

This brings us exactly to the point to be discussed, and upon 
which this case turns. 

The General Assembly has, in accordance with the require- 
ments of the Constitution, established a system of public instruc- 
tion, which is intended for all the youth of the State. In fact, the 
system does furnish the educational instruction, and the only 
instruction of that character which the great body of the youth of 
the State receive. A State school fund, consisting of a sum pro- 
duced by an annual levy and assessment on the grand list of the 
taxable property of the State is provided for, to be annually distri- 
buted to the several counties, exclusively for the support of com- 
mon schools, in proportion to the number of youth between the 
ages of five and twenty-one years, as ascertained by an enumera- 
tion to be annually taken as provided by law, and local taxation in 
addition may be imposed by authority of the local boards of educa- 
tion. The system is a public, not a private system. It is for the 
benefit of the State, not merely for the benefit- of the youth, for 



Argument of George R. Sage. 161 

Minor ct al. v. Board of Education of Cincinnati ei &L 

whom instruction is provided ; nor for the relief, or benefit, or 
assistance of their parents. Accordingly, the State holds every 
man subject to taxation in proportion to his property, without refer- 
ence to whether he himself have or have not children to be bene- 
fited by the education for which he pays. We regard the system 
" as a wise and liberal system of police, by which property and life, 
and the peace of society are secured." 

Counsel for the defendants content themselves with a much 
more narrow and limited view. They speak. of the school system 
as if it were a private system, and as if the citizen paid taxes for 
the education of his own children and for his and their benefit. 
Do they not know that from the city of Cincinnati and county of 
Hamilton sixty thousand dollars of school money raised by taxation 
go to Columbus and are thence distributed to other and less popu- 
lous counties ? Have they stopped to consider that we pay taxes 
every year in this city and county for the education of children in 
remote portions of the State ? Do those who are so conscientiously 
exercised about religious instruction as to insist that their taxes 
shall not be applied in support of such instruction, flatter them- 
selves that they will escape that result by the enforcement of the 
miserable resolutions put through the Board of Education, while 
the Bible is left in the schools of the rural districts ? Let them not 
deceive themselves, the money they pay into the treasury goes all 
over the State. The common school system is not administered 
upon any such narrow, contracted view as that upon which the 
whole argument for the defense rests. There are citizens paying 
taxes for the support of the public schools whose children were 
educated in those schools, while they were paying taxes twenty, 
thirty, forty years ago. Yet they are not exempt, because the 
schools are for the benefit of the State, and not merely for the ben- 
efit of those who have children to be educated. 

It is evident then that such instruction as will tend to secure 
life, property and the peace of society, — such instruction as will fit 
the youth in the schools to be good and useful citizens, should be 
provided. In this connection let it be borne in mind that in the 
petition it is alleged, that of the children educated in the schools, 
large numbers receive no religious instruction or knowledge of the 
Holy Bible except that communicated to them in the schools, and 



1 62 Superior Court of Cincinnati. 

Minor ct al. -v. Board of Education of Cincinnati et al. 

that such instruction is indispensable to fit such children to be good 
citizens of the State of Ohio and of the United States. Both 
allegations are admitted to be true by the defendants. Upon these 
admissions it follows that it is the duty of the Board of Education 
to provide such religious instruction as is necessary to qualify the 
children in the schools for the positions they are to occupy in the 
State as citizens. Up to the point of interference with the right 
of conscience the duty is imperative and can not be escaped. 

But here we are met by an appeal to the discretion of the 
Board of Education. It is claimed that that discretion is unlim- 
ited, and that the Court has no jurisdiction over it. The power 
of the Board, it is said, is supreme, and there is no remedy but to 
wait for the expiration of the official terms of the members and 
then appeal to the people to elect better men to fill their places — 
in other words, the claim is that the policy of the public schools is 
subject solely to the shifting surges of popular opinion as repre- 
sented by the Board. But the discretion of the Board is not 
unlimited. The members of the Board are trustees of the schools. 
Their discretion must be exercised in furtherance of the objects of 
their trust. The Court will not suffer it to be mischievously or 
ruinously exercised. (Hill on Trustees, 482 ; De Manneville v. 
Crompton, 1 V. & B. 354-9 ; Lewin on Trusts, 538, and cases 
cited.) Suppose the Board were composed of savans, who should, 
in their wisdom, undertake to prohibit all instruction in the schools 
except in the Sanscrit language, could not the Court interfere ? 
Unquestionably, for the reason that the action of the Board would 
be utterly subversive of the objects for which the schools were 
established. Suppose they should order that in a ward of the city 
having a majority of children of German parents and a minority of 
American, that instruction should be exclusively in the German 
language, would the Court permit that? Certainly not, for that 
would be in conflict with the idea, essential to the safety and welfare 
of the State, that we are, and are to be a homogeneous people. Let 
us come a little nearer. Would the Court permit the Board to 
carry into effect a rule excluding all teachings of morality from the 
schools, even if there were in the statute no clause requiring 
instruction in morality ? 

Is it not absurd to maintain that the Court would be powerless 



Argument of George R. Sage. 163 

Minor et al. v. Board of Education of Cincinnati et al. 

to prevent so gross an abuse of discretion by the Board ? Is 
it not an insult to common sense to assert that there is no judicial 
power to stop even the most flagrant violation of duty by the 
Board, however detrimental to the schools or the public, notwith- 
standing the statute of its creation clearly makes the Board a 
department of the corporate authority of the city, and the muni- 
cipal code expressly authorizes the Court to restrain the abuse by 
the city of its corporate powers, and that too, upon the application 
of any of the tax-payers ? And now, keeping in view the declara- 
tion of the Constitution that religion is essential to good govern- 
ment, and that the framers of the Constitution made that the first 
reason for requiring the establishment of schools, is it within the 
discretion, is it within the power of the Board, to prohibit all relig- 
ious instruction in the schools ? That is what they have under- 
taken. The prohibition is without qualification or exception. It is 
absolute and imperative. It sweeps away everything, it leaves 
nothing. The rule is as broad and exclusive as language can make 
it. It can not be frittered away by the explanation or construction 
of counsel. Whatever religion means in the Constitution, it means 
in the rule. Counsel can not by any subtlety of sophistry or skill 
in evasion make the religion of the Constitution as broad as the 
universe, and the religion of the rule as narrow as the gauge of 
their argument. Their ingenuity is marvelous, but it is futile. 
The rule needs no explanation. It explains itself. They can not 
escape its meaning. They are here to defend it, not to attack it 
by denying its true and only construction. 

" Religious instruction, and the reading of religious books, 
including the Holy Bible," is the phrase of the prohibition. There 
is no foundation for the plea that that means only the Bible. It 
means all that religion means, and it can not be made to mean any 
less. The Constitution says religion is essential to good govern- 
ment — therefore schools and the means of instruction shall be 
encouraged — the Board admits that religion is essential to good 
government, and, therefore, it shall be thrust out of the schools. 
Is this outrageous abuse of power to find refuge in the technicality 
of discretion ? Can even the General Assembly appeal to its dis- 
cretion to avoid judicial condemnation of its unconstitutional acts ? 
No, if your Honors please, the discretion of the Board gives them 



164 Superior Court of Cincinnati. 

Minor it al. v. Board of Education of Cincinnati et al. 

no authority to prohibit instruction in any thing which the Consti- 
tution, in connection with the establishment of schools, declares to 
be essential to good government. Was it competent for the Gen- 
eral Assembly, when it enacted the school law, to prohibit all relig- 
ious instruction in the schools ? Will any one of the counsel for 
the defense, in the face of the Constitution, commit himself to that 
proposition ? Will they commit themselves to the proposition that 
the School Board, the creature of the General Assembly, can do 
what the General Assembly itself, under the restraint of the Con- 
stitution, can not do? If not, let them abandon this plea of dis- 
cretion and meet us on the merits. Let them demonstrate if they 
can that no religious instruction is possible without a violation of 
the constitutional right of conscience. 

But there is another answer to this plea of discretion. Trus- 
tees invested with a discretionary power are not bound to assign 
their reasons for the way in which they exercise it ; yet, if they do 
state their reasons, and it thereby appears that they were laboring 
under an error, the Court will set aside the conclusion to which 
they come upon false premises. (Lewin on Trusts, 543 ; Re 
Beloved Wilkes Charity, 3 Mac. & Gor. 440.) In Regina v. The 
Bailiff's of Ipswich, 2 Ld. Raymond's Reports, 1240, on manda- 
mus to restore a party whom the corporation had discharged from 
the office of recorder, Holt said : "That if he had been an officer 
ad libitum, the corporation ought to have returned that and relied 
upon it, and it would have been a good return ; but they could not 
take advantage of that when they had returned the cause, if the 
cause were not sufficient." The Board has answered, setting up 
the reasons for its action, and every member of the Board who 
voted for the resolutions, has joined in the answer. We have upon 
their own statement all the grounds of the exercise of the pre- 
tended discretion of the Board. They are stated fully and circum- 
stantially. We know exactly what prompted the passage of the 
resolutions. The Board and the majority have appealed from their 
discretion to their reasons. They have put the grounds of their 
action before the Court, and have thereby made it competent for 
the Court to pass judgment upon them. They have submitted them- 
selves to the jurisdiction of the Court, and it is now too late for 
them to invoke their discretion as against that jurisdiction. The 



Argument of George R. Sage. • 165 



Minor et al. v. Board of Education of Cincinnati et al. 

Court may look into the reasons assigned, and if it find them 
derogatory to the Constitution or to Christianity, it may set them 
aside and annul the rule itself. But it is not a question of discre- 
tion. It is a question of power. If the Board has the power to 
do what it has attempted, there is the end of the case. If it has 
exceeded its power, the Court can interfere by its prohibitory writ. 
The rule is stated with great clearness in Story's Equity Jurispru- 
dence, sec. 955, a : 

" The question has been made, how far a court of equity 
has jurisdiction to interfere in cases of public functionaries who 
are exercising special public trusts or functions. As to this, the 
established doctrine now is, that so long as those functionaries 
strictly confine themselves within the exercise of those duties 
which are confided to them by the law, this Court will not interfere. 
The Court will not interfere to see whether any alteration or reg- 
ulation which they may direct is good or bad ; but, if they are 
departing from that pov/er which the law has vested in them, if 
they are assuming to themselves a power over property which the 
law does not give to them, this Court no longer considers them as 
acting under authority of their commission, but treats thern, 
whether they be a corporation or individuals, merely as persons 
dealing with property without legal authority." 

To the same effect are the cases of Frew'in v. Lewis, 4 Mylne 
& Craig, 254 ; Freeman v. School Directors, 37 Penn. State, 385 ; 
Clark v. The Board of Directors, 24 Iowa, 266. In Dwnmer v. The 
Corporation of Chittenham, 14 Vesey, 245, Lord Eldon sustained 
a bill against a corporation and its members, trustees for a charity, 
for a discovery and injunction against a resolution depriving the 
complainant of his office of school-master, although the corpora- 
tion had the power of nominating the master, and of dismissing 
him at their will and pleasure. Jt was held that the Court could 
entertain a bill against the trustees as individuals to obtain a discov- 
ery whether through their means, so manifested, there was such an 
abuse of the discretion vested in the corporation, as trustees, as the 
Court would reform. In Robinson v. Chartered Bank, 1 Equity 
Cases, L. R. S. 32, Sir J. Romilly, M. R., held that the court of 
directors must exercise its power reasonably, and would be con- 
trolled by a court of equity. In Weston's case, 6 Equity Cases, 
12 



1 6 6, Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et al. 

238, it was held that the discretion of the directors of a com- 
pany was not arbitrary, but must be exercised in a just and reason- 
able manner. In Davis v. The Mayor, etc.^ of the City of New 
York, 1 Duer, 451, where there was an injunction restraining the 
mayor, aldermen and commonalty of the city, from making a 
grant by resolution to certain parties to construct a street 'railway 
on Broadway, the Court, said p. 498 : " A court of equity will 
not interfere to control the exercise of a discretionary power where 
the discretion is legally and honestly exercised, and it has no reason 
to believe the fact is otherwise, but will interfere whenever it has 
grounds for believing that its interference is necessary to prevent 
abuse, injustice,, or oppression, the violation of a trust, or the con- 
summation of a fraud. It will interfere — and it is bound to inter- 
fere — whenever it has reason to believe that those in whom the 
discretion is vested are prepared illegally, wantonly, or corruptly, 
to trample upon rights and sacrifice interests, which they are speci- 
ally bound to watch over and protect." This case was affirmed 
by the Court of Appeals, 5 Selden, 263, and is exactly in point 
both as to the kind of remedy and its application. 

But we are met with another objection. It is insisted that the 
writ of injunction is not the proper remedy, — that the rule of the 
Board, the enforcement of which we pray to have enjoined, 
became operative by and upon its passage, and that in any event 
the repeal of the rule providing for reading a portion of the Bible 
by the teachers, and appropriate singing by the pupils at the open- 
ing exercises of the schools, can not be affected by the judgment 
of the Court because it is an accomplished fact. 

The answer to these objections is easy. The petition alleges, 
and the answer of the Board, and of the clerk of the Board, 
admits, that the rule we seek to have enjoined has not been promul- 
gated to the teachers, nor put in operation in the schools, but is 
yet in the hands of the clerk, through whom alone it can be offici- 
ally promulgated. Moreover, we pray that upon final hearing, the 
rule complained of be adjudged null and void. The rules of the 
Board make new rules operative only when officially communicated 
by the clerk to the teachers, which has not been done in this 
instance; the writ of injunction is therefore the proper remedy. 
If the injunction be made perpetual the new rule never will be 



Argument of George R. Sage. 167 

Minor et al. -v. Board of Education of Cincinnati et al. 

operative. Thus we are brought back to the question of the 
power of the Board. In addition to the authorities already cited, 
and in answer to the suggestion that a writ of quo warranto should 
have been applied for, the Court is referred to the case of Bradley 
v. Com?nis si oners et al., 2 Humphrey's Reports, 428, where it was 
held that " even where the writ of quo warranto is the common law 
mode of redressing certain grievances, a court of chancery will 
interfere upon the principle of quia timet, and use its process of 
injunction for the prevention of great and irreparable mischief." 
Then, too, it is objected that the writ must be refused unless the 
Court is prepared to say judicially just what and how much religious 
instruction shall be imparted in the schools, or in other words, 
unless we would be entitled toM:he mandatory writ to compel the 
Board to provide specific religious instruction, we can not have the 
prohibitory writ against its exclusion. But this is only a new state- 
ment of an old, erroneous and exploded notion. It was formerly 
laid down that when the positive part of an agreement could not be 
enforced by the Court, it would not enforce the negative by injunc- 
tion. {Kemble v. Kean, 6 Sim. 333.) But it is now clearly estab- 
lished by the recent case of Lumley v. Wagner, {\ De G., M. & G. 
604,) that where there is an agreement in part positive and in part 
negative, ,and the positive part is such as the Court might be un- 
able to enforce specifically, it may yet interfere in respect of the 
negative part by means of injunction. The authorities are col- 
lected in Fry on Specific Performance, sees. 555, 556, 557. 

Again, it was claimed by Judge Stallo that the act of the Board 
is legislative, and therefore beyond the reach of the Court. Even 
if legislative, it is void if in excess of the power of the Board. 
But if it be a legislative act, there is no sort of authority for it, 
because the Constitution expressly limits the legislative power to 
the General Assembly, and the General Assembly can not delegate 
that power to any other body or to the people. (C, W. & Z. R. 
R. Co. v. The Commissioners of Clinton Co., 1 Ohio State Rep. Jj.) 
From all points of view we see that the question upon which the 
case rests is whether the Board had the right and the power to pass 
and enforce the resolutions of the first of November. 

The Constitution declaring that religion, morality, and knowl- 
edge, are essential to good government, and making that decla- 



1 68 Superior Court of Cincinnati. 

Minor et al. <v. Board of Education of Cincinnati et al. 

ration the foundation and reason for requiring the General Assem- 
bly to pass suitable laws to encourage schools and the means 
of instruction, and the schools established accordingly being public 
and not private — for the benefit of the State and not for the benefit 
of individuals — the Board is under an obligation, imposed by the 
Constitution itself, to provide instruction in each one of the great 
essentials above named, unless it can be shown that such instruction 
can not be given without violating some constitutional right of the 
citizens of the State. 

The only right with which it is claimed instruction in religion 
comes in conflict, is the right of conscience. The justification of 
the prohibition of all religious instruction must be found, if at all, 
in an insuperable and controlling objection, and that objection can 
rest only upon the liberty of conscience guaranteed by the Consti- 
tution. If the defendants can not plant themselves immovably 
there, they have no standing anywhere — no excuse — no justifica- 
tion. If there be any religious instruction which can be imparted 
in the schools without interfering with the rights of conscience, that 
instruction the Board must provide. To omit to provide instruc- 
tion in what the State has declared to be essential to good govern- 
ment, and in what every member of the Board admits to be indis- 
pensable to fit the children of the schools to be good citizens, would 
be a palpable and gross violation of duty. To prohibit absolutely 
and imperatively such instruction would be to strike a blow at the 
great object for which the schools were established ; a blow which, 
if it should reach its mark, would let out the life-blood of the whole 
system of public instruction. 

Thus the great question is whether religious instruction can 
be imparted in the public schools without interfering with the rights 
of conscience. My friends on the other side admit that if it can 
the Board has no right to exclude it, and we admit if it can not it 
must go out. 

Now, up to this time we have had very few definitions. My 
friends on the other side were for two days generalizing upon the 
propositions involved in this case. No one undertook to define the 
meaning of the expression of the Constitution, that religion is essen- 
tial to good government. No one undertook to define the rights of 
conscience. It seemed to be assumed that the right of conscience 



Argument of George R. Sage. 169 



Minor et al. v. Board of Education of" Cincinnati et al. 

was so indefinite, so general, so elastic, as to be whatever any citi- 
zen might choose to claim. I maintain that this right of conscience 
is a legal right. It is a constitutional right. It is not a whim. It 
is not a caprice. It is not what every citizen may choose to assert. 
It is something; capable of ascertainment from the Constitution and 
the history and practice of the Government. It is that, and it is 
nothing more. The citizen can not establish for himself any new 
rights, any rights which are not recognized by the Constitution or 
by the State. A very good illustration of this proposition was stated 
by Lord Brougham, in a speech made in the House of Commons. 
He supposed the case of a member of the Society of Friends, who 
should come into a court of justice and say that his conscience not 
only precluded him from taking an oath, but because he had strong 
feelings on the subject of capital punishment, also prevented him 
from giving evidence which might affect the life of an individual. 
The answer which would be given to such a person would be this: 
" Sir, you have no right to have a conscience on such a subject at 
all ; the Legislature is the only judge of the necessity of taking 
away a man's life, and your notion of jurisprudence must not stand 
in the way of justice." 

Now, my friends have referred to Roger Williams, and very 
justly, as the founder of religious liberty. I know it is sometimes 
claimed that the liberty of conscience which was proclaimed in 
Maryland was prior to the time of Roger Williams, and that the 
Catholic colony in Maryland is entitled to the honor of establish- 
ing religious liberty in this country. 

But we all know that that was a very qualified liberty. Any 
one is curious enough to refer to those old laws will find that who- 
ever should either blaspheme or deny the Trinity, or any of the persons 
of the Godhead, was punishable with death. And whoever should 
revile or deny any of the Evangelists, or the Virgin Mary, should, 
for the first' offense, be subject to a fine of five pounds ; or, in 
default of payment, thirty-nine lashes, in the discretion of the lord 
proprietor of the province. For the second offense, ten pounds, 
or the same alternative. For the third offense, forfeiture of all 
property, and banishment from the colony forever ; a sort of lib- 
erty which the Board of Cincinnati, the majority of them, would 
not much relish. 



iyo Superior Court of Cincinnati. 

Minor et al. >v. Board of Education of Cincinnati et al. 

Roger Williams, in a letter which he addressed to the town of 
Providence, in January, 1654 (Arnold's History of Rhode Island, vol. 
1, p. 254), gives an illustration of the right of conscience, which 
is as clear and masterly as anything since written. 

tc There goes many a ship to sea, with many hundred souls in 
one ship, whose weal and woe is common, and is a true picture of 
a commonwealth, or a human combination or society. It hath 
fallen out, sometimes, that both Papists and Protestants, Jews and 
Turks, may be embarked in one ship ; upon which supposal I 
affirm that all the liberty of conscience that ever I pleaded for 
turns upon these two hinges ; that none of the Papists, Protestants, 
Jews, or Turks, be forced to come to the ship's prayers or worship, 
nor compelled from their own particular prayers or worship, if they 
practice any. I further add that I never denied that, notwithstand- 
ing this liberty, the commander of the ship ought to command the 
ship's course ; yea, and also command that justice, peace, and 
sobriety be kept and practiced, both among the seamen and all the 
passengers. If any of the seamen refuse to perform their service, 
or passengers to pay their freight ; if any refuse to help in person 
or purse toward the common charges or defenses ; if any refuse 
to obey the common laws and orders of the ship concerning their 
common peace or preservation ; if any shall mutiny and rise up 
against their commanders and officers ; if any should preach or 
write that there ought to be no commanders or officers, because all 
are equal in Christ ; therefore no masters nor officers, no laws nor 
orders, no corrections nor punishments 5 I say I never denied but 
in such cases, whatever is pretended, the commander or com- 
manders may judge, resist, compel, and punish, such transgressors, 
according to their deserts and merits." 

My friends say that because there are Jews or Turks on board 
the ship there shall be no prayers or worship. Their proposition 
makes every man the master of the ship, and leaves it to be driven 
hither and thither in mid ocean, without chart or course or direction, 
and subject to the control of whoever chooses to mutiny against the 
existing order of affairs. 

Mr. Matthews. It is you who are making the mutiny here. 

Mr. Sage. We will see about that. The proposition we are 
making here is precisely in accordance with the doctrine stated by 
Roger Williams in this letter, and I shall undertake to prove that 
the gentlemen for the defense, instead of proclaiming the doctrine 



Argument of George R. Sage. j 7 1 

Minor et al. <v. Board of Education of Cincinnati et a/. 

of liberty, are putting forward old dogmas of despotism, as though 
they had not long ago been exploded and recorded as a warning 
for the benefit of all who desire the welfare of religion or of the 
State. 

Right here let us consider, very briefly, what conscience is and 
what is its office. It is said, generally, that it is the moral sense, or 
the faculty, power or principle within us which decides on the law- 
fulness or unlawfulness of our actions and affections, and instantly 
approves or condemns them. I understand that, we derive our ideas 
of right and wrong from the combined action of the intellectual and 
moral faculties. Consequently those ideas depend greatly upon edu- 
cation. One child may be taught to believe that to speak an untruth 
under any circumstances is wrong; another that falsehood is right in 
certain cases. The conscience of the first child would censure 
where the conscience of the second would be silent or even approve. 
Yet conscience is the same in both cases. Conscience is not 
information; it is not prejudice; nor is it will. It is the executive 
faculty of the moral nature. It is that faculty which prompts us to 
do what we believe to be right, and restrains us from doing what we 
believe to be wrong. Liberty of conscience is liberty to obey the 
promptings of conscience. It is liberty to know all the facts and 
principles necessary to enable conscience to act intelligently and 
rightly. Upon this proposition I desire to read from the argument 
of Mr. Binney for the defense in the Girard will case, an extract 
or two so well conceived and happily expressed as to be well 
worthy the attention of the Court. Speaking of one of the pro- 
visions of Mr. Girard's will, he said : 

" Again, he especially desires that by every proper means a 
pure attachment to the sacred rights of conscience shall be formed 
and fostered in their minds. What notion of the rights of con- 
science are they -to obtain without being instructed in the nature 
and office of conscience ? Are they not to be taught what con- 
science is, and whose voice it speaks, and that it is the great demon- 
strative proof, irrefragable, and universal, of the being of God ? Are 
they not to learn that it is the faculty by which men judge of their 
own actions by comparing them with the law of God, as it remains 
perhaps faintly written on their hearts, but stands distinctly revealed 
in His word ? And can they be instructed in its rights without 
being informed that this law is so much more obligatory than any 



172 Superior Court of Cincinnati. 

Minor ct al. t>. Board of Education of Cincinnati et ah 

law of man, that the duty of obeying the law of God is the foun- 
dation of all the rights of conscience j that conscience is in fine 
the expositor of the will of God ? " 

And further, speaking of the duty of the teachers under the 
will : 

44 May they not, must they not, enlighten the faculty in their 
pupils, improve its discriminating power, exercise them in reflecting 
on the' moral character of their actions, on the character of their 
Creator and Redeemer, and in referring themselves ultimately to 
the supreme law derived from Revelation ? Beyond all doubt, he 
does leave it to them without restraint, without a word or syllable 
to turn them from the path they shall think best. Beyond doubt it 
is their duty to walk in that path; and they can not take any path 
that leads to a right notion of conscience, that will not lead to the 
belief of a Supreme Judge and Sovereign, of whom conscience is 
the deputed governor in the human heart, and also to the desire of 
learning and obeying His will, whether inscribed on the heart itself 
or revealed in His word." 

The very first right of conscience, that right upon which lib- 
erty of conscience altogether depends, is the right to be informed. 
That was always the proclamation of liberty. It was always a 
dogma of despotism that but one view should be communicated' to 
the individual ; that no religious tenet should be made known to the 
child or to the citizen, but that which was in accordance with the 
established religion of the State. It was against precisely that prop- 
osition that the founders of the Republic set up the standard of lib- 
erty of conscience, and established the provisions of our American 
Constitution. It was always the proposition of despotism that 
whatever the State did not approve should be concealedj and no 
knowledge of it be had. It was always the teaching of liberty 
that whether the fact were approved or disapproved, it was the 
right of the citizen to know that fact, and to apply his own judg- 
ment to it. . . 

Judge Storer. It is a question whether the conscience had bet- 
ter not be left out of the discussion on both sides ; whether the 
word conscience is not confined to the worship of Almighty God ; 
whether a man has to exercise conscience, as he calls it, in doing 



Argument of George R. Sage. 173 

Minor et al. v. Boord of Education of Cincinnati et al. 

wrong ; and when he is arrested for a crime, excuse himself on the 
ground that he conscientiously believed he had a right to do what 
he did. Supposing there is a God, and he is Almighty, every man 
has a right to worship Him in his own form according to his own 
conscience. 

Mr. Sage. There is a case in point in Cushing's Reports, vol. 
2. The question was whether the exclusion of an Atheist from 
the witness stand, was a violation of the constitutional protection of 
the right of conscience. The Court said in their opinion, the 
constitutional provision had no reference to Atheists and to their 
competency as witnesses. It was intended to prevent persecution 
by punishing any one for his religious opinions, however erroneous 
they might be. But an Atheist is without any religion, true or 
false. The disbelief in the existence of any God, is not a religious, 
but an anti-religious sentiment. 

Judge Storer. I can give an illustration of that which shows how 
liberal courts are in these matters. About eight months ago, a 
very respectable looking man appeared in that very witness box. 
When he was called upon to testify, he said he could not take the 
oath, and said he wanted to be excused, as he did not believe there 
was a God. I said, " Do you believe that you exist, yourself?" He 
said he did. Said I, u Why do you believe so ?" He said, 
" Because I am conscious of my existence." I then said, "Who 
gave you that consciousness ?" He thought a moment, and said, 
" I will be sworn." 

Mr. Sage. Whatever may be the law upon that subject, I con- 
cede that the Constitution guarantees to the Atheist that there shall 
be no discrimination against him on account of his Atheism. 

This right of conscience is no right to close up the mind against 
fa,ct. That is despotism. That is not liberty. Liberty gives no 
right to the parent to say to his child, " You shall have no instruc- 
tion in religious teachings, except what I choose to convey to you." 
That is the very pillar of religious despotism. It is the basis of all 
those persecutions to which my friend referred in his opening argu- 
ment for the defense. They belong together and go together, and 
neither is the true doctrine of American laws or American consti- 
tutions. It seems to me that my friends clothe liberty in the black 
blood-stained garments of despotism, and the utterances which they 



174 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati tt al. 

give forth in her name come to us as the echoes of those old decrees 
of intolerance, which were followed by the rack, the faggot and the 
sword. I appeal from them. I appeal to the gentlemen who do 
not agree with me in regard to religion, that in putting forward 
these arguments they are putting forward propositions most danger- 
ous and destructive of the principles of liberty. But for the trans- 
lation of the Bible into the vernacular, none of us would be here 
to-day discussing these questions. Seal that book, proscribe it, or 
put it under the ban, and you put an end to our safety. But for 
the fact that the Bible is, and always has been, in our national life, 
recognized as the book of revealed truth, this republic would never 
have had an existence. You may take all the Korans, the Vedas, 
and all the treatises on morality, many of which have been so elo- 
quently referred to by counsel for defendants, and put them in one 
pile and burn them, and with that burning destroy every remem- 
brance of their teachings, and you will not affect society one whit. 
But take away that other Book which has stood through all times, 
which is the Book of to-day, the Book of a thousand years ago, 
and the Book of all time to come, take that away and all remem- 
brance of its teachings and truths, and there will be nothing left 
upon which we may depend for our safety. And so far as you sanc- 
tion the proposition that part of the community has the right to 
banish that Book from the public schools and the public places, to 
prevent its truths from being known, just so far do you establish a 
proposition of despotism. The provisions of the Constitution 
bear very significantly upon this point. The Constitution declares 
that religion is essential to good government, and that is given as 
the first reason for the establishment of schools. There is another 
and separate provision that no religious sect shall have exclusive 
control of the school fund. Why ? In addition to the reasons 
already given, if the State give a portion of the fund to one sect 
or church, it will take its own children and bring them up in its 
own religion, and close their minds against all other religious 
instruction. The State would thereby lend its aid to build up a 
column of despotism. Ideas of intolerance in the minds of the chil- 
dren would be the necessary outgrowth of exclusively sectarian 
instruction — ideas, dangerous to the State and destructive of the 
liberties of the people. Hence, it is the true policy of the State 



Argument of George R. Sage. 175 

Minor ct al. <v. Board of Education of Cincinnati et al. 

that the Bible, which contains the elementary truths of religion, 
shall be read in the public schools, that all the children in the 
land, our future citizens, may know what it contains — and that 
those truths be made known to them, as the Almighty has 
revealed them, and not merely as interpreted by any sect or creed. 
It was the idea of the framers of the Constitution that the Bible 
should be free, and that ail its truths should be free ; that the chil- 
dren in the schools should be kept from the narrowing influence 
of one set of ideas ; and from the notion that only one version of 
those truths should be received or colerated. It was not the inten- 
tion of the framers of the Constitution to encourage schools, to be 
conducted at the public expense, in which sectarian tenets alone 
should be taught. 

And here I venture to anticipate the answer to these proposi- 
tions, that the policy we advocate will produce the result we depre- 
cate — that we are strengthening the Catholic parochial schools — 
whereas, if the policy of the Board be carried into operation those 
schools will be abandoned. Let not my friends cherish that delusion. 
Let them rather recall certain significant facts touching the relation 
of the Catholic Church to the public schools of Cincinnati. From 
the year 1829 to the year 1842, the Bible without note or comment 
was read in the schools, no one objecting. There were then no 
Catholic parochial schools. The Bishop of the Catholic Church — 
he who is now Archbishop — was for some time a member of the 
Board of Examiners, and active in support of the schools. In 
1842 the first intimation of an objection was made. It was not to 
the reading of the Bible, but that Catholic children were required 
to read the "Protestant Bible and Testament." The Board 
promptly and unanimously conceded every thing suggested by the 
objection. From that time until the year 1852 no further objec- 
tion was made. The Bible was read and the schools prospered. 
In 1852 the next move was made. Almost simultaneously a 
similar movement in the interest of the Catholic Church was 
made throughout the whole country. It is said that this was 
in accordance with the action of a secret conclave of the authori- 
ties of that church held in the city of Baltimore. Whether such 
was the fact is not material. A Catholic member of the Board, in 
the interest of the Catholic Church, presented a series of resolu- 



176 Superior Court of Cincinnati. 

Minor et al. <v. Board of Education of Cincinnati et al. 

lions, admitting the necessity of reading the Bible in the schools, 
and authorizing the introduction of the translation approved by the 
Catholics and that approved by the Jews, and their use by those 
preferring them. The Board, upon assurances that its action would 
be satisfactory, enacted a rule granting all that the resolutions 
called for. The next year the Catholic parochial schools were 
established, and the whole power of the Catholic Church was 
arrayed against the public schools. The Board, in its annual 
report for that year, announced that they were " constrained to 
infer that no union of action or system is intended or desired by 
the assailants of the public schools upon any terms but such as are 
incompatible with the principles and usages which thus far have 
sustained the free schools of this country." 

Now, my friends tell us if we will only consent to exclude 
the Bible and all religious instruction from the schools, the Catho- 
lic children will come into them, and the Catholic schools be bro- 
ken up. How do they know ? Upon what authority do they 
make this statement ? Have they any higher authority than the 
Archbishop ? Here is his official communication to the Board, 
September 18, 1869: 

"The entire government of public schools in which Catholic 
youth are educated can not be given over to the civil power. 

" We, as Catholics, can not approve of that system of educa- 
tion for youth which is apart from instruction in the Catholic faith 
and the teaching of the Church. 

" If the School Board can offer anything in conformity with 
these principles, as has been done in England, France, Canada, 
Prussia, and other countries where the rights of conscience in the 
matter of education have been fully recognized, I am prepared to 
give it respectful consideration. 

"John B. Purcell, Archbishop of Cincinnati." 

This explicit avowal of the policy of the Catholic Church 
should be regarded as definite and conclusive, unless my friends 
can produce some higher and overruling authority. What is the 
true construction of his invitation to the Board to offer something 
in conformity with the principles of the Catholic Church, may be 
easily learned by consulting the columns of its official organs. 

Now, the right to liberty of conscience is not only a right to 



Argument of George R. Sage. 177 

Minor et al. -v. Board of Education of Cincinnati ct al. 

be informed, but it is a natural right. It is so declared in the Con- 
stitution. It is the birth-right of every American citizen. It is 
an individual right. It is a right which attaches as soon as moral 
consciousness dawns upon the individual. It is a right for time — 
a right for eternity — a right to know the truth and the whole truth, 
and to believe and practice what God and conscience dictate. 
The child, when it comes to its teacher for instruction in truth and 
duty, with that yearning for truth and the source of truth, which 
the child more than any other living creature feels, has a right to 
be informed of the ultimate source and authority of the teachings 
conveyed, and no school board has the right or power to seal the 
teacher's lips, or require him to withhold that divine revelation which 
is the source of all truth. 

Suppose a child of Protestant parents should intelligently and 
conscientiously decide to espouse the faith of the Catholic Church, 
and the parents should undertake, by coercion, to control the child. 
Suppose they should undertake to set up their parental authority 
against the child's conscience, and restrain it by force from follow- 
ing out its religious convictions. Will my friends undertake to 
deny that the child might not by its next friend come into Court 
and be released from that coercion and restraint ? Would the 
Court require anything more or less to justify its interference, than 
to ascertain whether the child had arrived at such a degree of intelli- 
gence as to understand what it was proposing to do ? Where do 
my friends find it written in American law, that the parent or 
the Church is absolute keeper of the conscience of the child ? I 
do not mean to deny the right of parental control. I yield all that 
can be claimed under the law of God or man in that respect, but I 
do say that my friends can not refer me to any law which makes the 
parent master of the conscience of the child. It is not liberty of 
conscience that these men who are opposing the Bible in the 
schools desire. What they are seeking for is the establishment of 
an order of things which will enable them to so fix in the mind 
of their children, and so fasten upon their convictions views and 
tenets that they will be proof against all other teachings ; to so 
imbue them with their own prejudices and sectarian dogmas, before 
they have opportunity to receive any other instruction, that liberty 



iy8 Superior Court of Cincinnati. 

Minor ct al. -v. Board of Education of Cincinnati ct al. 

of conscience will never come into play with them. And all this 
they propose in the name of liberty and not of despotism.' 

But the Constitution itself defines the -right of conscience. 
First we have the declaration that " all men have a natural and 
indefeasible right to worship God according to the dictates of their 
own conscience." This right the majority of the School Board 
propose to secure to the children in the schools, by withholding 
from them all knowledge of even the existence of God, much 
less that He has revealed His will to mankind, or that He is to be 
worshiped in any manner. How effectual would be the policy of 
the Board ; in what heathenish darkness it would leave large num- 
bers of the children in the schools, appears from the petition and 
answer. Wonderfully careful of conscience are the members of 
the Board who voted for the resolutions, but very slight examina- 
tion reveals that their concern is for the conscience of Atheism, 
of bigotry and intolerance ; not the conscience of the citizen 
desiring those things which are for the welfare of the State and the 
safety of society. 

Following the general declaration of the right of conscience, 
come the constitutional specifications : - " No person shall be com- 
pelled to attend, erect, or support any place of worship, or main- 
tain any form of worship, against his consent, and no preference 
shall be given by law to any religious society, nor shall any inter- 
ference with the rights of conscience be permitted." Now I 
wish my friends had at least attempted to make it appear that 
the communication to the children in the schools, of the 
elemental truths of religion, of those truths without a knowl- 
edge of which the worship of Almighty God is impossi- 
ble, is in conflict with any one of these constitutional provisions. 
To furnish the mind with the material upon which conscience 
is to act, and then leave the individual free to follow the 
dictates of conscience, seems to be more in accord with liberty of 
conscience, than to prohibit all instruction and allow conscience 
nothing to play upon. 

But even upon the construction of the rights of conscience 
claimed by the counsel for the defendants, the rule which the Board 
attempted to repeal was much more in accordance with the rights of 
conscience of the patrons of the schools than the rule proposed. 



Argument of George R. Sage. 179 

Minor et al. -v. Board of Education of Cincinnati et al. 

The old rule provided for the accommodation of every one. The 
pupils might read the version of the Bible preferred by their par- 
ents or guardians. In the second district there is a majority of 
Catholic scholars in one of the schools, and under the old rule the 
public reading of the Bible was from the Douay version. 

Mr. King. And is so now. 

Mr. Sage. I may add that during the administration of my 
friend, Mr. King, as President of the School Board, complaints were 
made by some Protestant parents, but the rule was impartially ob- 
served, and the Douay Bible continued to be read, and is read to this 
day in that school. I do not speak of the Douay version as the Catho- 
lic Bible, nor the King James version as the Protestant Bible. My 
friends upon the other side lay great stress upon these designations, 
but I beg to remind them that the light of Protestantism broke 
forth in the sixteenth century, and filled all Europe, not from the 
King James version, but from the old Vulgate, translated by 
Jerome at the request and under the patronage of Pope Damascus 
in the fourth century. If the Catholic Church or the Protestant 
Church depended solely upon the difference of versions, their dura- 
tion would be short indeed. 

There was another provision which, added to the choice of 
versions, made the old regulations of the Board complete for 
the protection of the rights of all. That provision was the reso- 
lution of 1842 — never repealed — authorizing and directing teach- 
ers to excuse children altogether from the religious teachings of the 
schools upon the request of their parents and guardians. Under 
the old administration of affairs, then, the Catholic or Jew could 
have the version of the Scriptures of his choice read to his chil- 
dren, or he could have them altogether excused from any religious 
teaching, and the same privilege was extended to the Infidel and 
Atheist. At the same time provision was made for conveying 
the elemental principles of religion to the children of those not ob- 
jecting, and to those who would otherwise be entirely destitute of 
all knowledge of religion and of the Holy Bible. Whose right of 
conscience was offended by that rule ? Who had any right to com- 
plain ? Was not my friend, Judge Stallo, carried a little beyond 
the facts in the heat of his argument, wherf he talked about 
" cramming- the Bible down the throats of the children of Catho- 



180 Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et al. 

lies or Jews/' as one of the legitimate consequences of the old 
rule ? 

Now what has the Board attempted to do ? Because some 
patrons of the school objected to having their children read the 
Bible, the majority decided that not merely should their children be 
excused, but the Bible should be excluded altogether from the 
schools, and all religious instruction prohibited ; this, too, notwith- 
standing the protest of more than ten thousand citizens and 
patrons of the schools sent up to the Board, and the action of the 
majority would, as appears by their own admission, solemnly made 
in their answer in this case, leave large numbers of children with- 
out instruction indispensable to make them good citizens ot the 
State and of the nation. No more flagrant abuse of power or dis- 
cretion was ever attempted by any public body. No act so entirely 
in accordance with the old teachings of despotism was ever before 
even heard of in the history of the Board. And this was attempted 
in the name of liberty and conscience, and counsel come here and 
complain to us of persecution, and talk of Church and State and 
of an establishment of religion. 

From the windows of the chamber in which the resolutions 
were passed, the members of the Board could have seen — no build- 
ings intervening — first, the stately cathedral of the Catholic 
Church, its foundation laid, its walls built, its spire finished and 
capped with the cross before the year 1852, before the Catholic 
schools were established, and during the time when the Bible was 
read to the Catholic children in the schools. Next, the Jewish 
temple, the sanctuary of those who cling to that religion given by 
God to the people of Israel upon Sinai, and who hold to the tradi- 
tion of thousands of years ago. Across the street, and in full 
view, is the house of worship of the Radical Unitarian church, 
whose minister — a member of the Board, and one of the defend- 
ants — was one of the leaders of the party in favor of the prohibi- 
tory resolutions, where certainly the broadest latitude' is allowed, 
where, I may say, every member is permitted to form his own 
opinions of the teachings and requirements of Christianity and 
religion. Next beyond, they could have seen the church of the 
Scotch Covenanters, who adhere to the sturdy Protestant faith of 
their fathers, and every Sunday sing the Psalms of David in 



Argument of George R. Sage. 1 8 1 

Minor et al. i<. Board of Education of Cincinnati ct al. 

Rouse's version. Just beyond, and a little further to the north, 
they could have seen the foundations for the church of Campbell- 
• ite Baptists. They could have seen five churches representing five 
different creeds as diverse as any upon the face of the earth. If 
this is the natural fruit of the intolerance of the School Board of 
Cincinnati hitherto, let it be continued a quarter of a century 
longer, and we shall find all denominations, and all sects repre- 
sented by buildings all around that square. 

A moment's thought would have reminded them that the 
Catholic Church had then greater vitality and vigor in the city of 
Cincinnati than in the city of Rome. A moment's consideration 
would have brought to their minds that the Jews had in Cincinnati 
two costly and magnificent temples, not surpassed in any city in 
Christendom, and that many of their number have been advanced 
by the voluntary action of their fellow citizens to high positions of 
trust and honor. Had they been disposed to look at facts, it was 
within their knowledge that every Protestant sect was represented 
in the city by churches, active and prosperous, and that those 
opposed to all religion were by no means restrained in their views 
or utterances. 

What trifling, what mockery, in the light of these facts, to 
talk of the suppression of religious freedom by the continuation of 
a rule of the schools which has been observed for forty years ! 
What an insult to common sense to pretend that an observance 
which has borne such fruit must be set aside because of its intoler- 
ance ! 

But we have already seen that the true construction of the 
Constitution makes it necessary that the Board should be able to 
state imperative reasons to justify its total prohibition of religious 
instruction in the schools. The answer assigns the reasons, and I 
propose now to examine them, in connection with those presented 
in argument by the counsel for the defense who have preceded me. 

First, is the old objection founded upon the differences of 
belief. The Jew, the Catholic and the unbeliever are put forward. 
It is insisted that the elemental truths of religion can not be taught 
without running into sectarianism. Here again counsel find it con- 
venient to dispense with definitions and deal in general assertions. 
That which is sectarian pertains to some doctrine peculiar to a sect. 
13 



1 8 2 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

The elemental truths of religion are common to all sects profess- 
ing the religion recognized by the Constitution. Only upon the 
hypothesis that all religion is sectarian — that religion and sectarian- 
ism are synonymous — can sectarianism be pleaded as a sufficient 
reason for the absolute and unqualified prohibition of all religious 
instruction in the schools. But the proposition is absurd. It has 
no foundation in theology, nor in law. The Constitution itself 
recognizes religion and provides against sectarianism in the affairs 
of the State. If there is nothing but sectarianism in religion, then 
the recognition of religion by the State, the administration of oaths 
or even the mention of the name of God is sectarian, and in con- 
flict with the doctrines of American liberty — in one word, Amer- 
can liberty is the liberty of Atheism, and religion is to be spoken of 
by the citizen only privately and in tones so low that they may not 
come to the ear of the State. This is the liberty of conscience to 
which the School Board of Cincinnati invites her citizens, and for 
which it would banish from the schools instruction admitted to be 
indispensable to fit the pupils for the duties of citizenship. 

It is said that even the reading of the Holy Bible, without 
note or comment, is sectarian. Will my friends tell me what sect 
will be benefited by such reading ? If they will demonstrate that 
the Bible teaches unmistakably the peculiar doctrines of any one 
sect, thev will thereby demolish all other sects, and the very name 
sectarian, in its religious acceptation, will become obsolete. If 
they will point to one passage or text of the Bible and prove 
beyond controversy that it teaches sectarian doctrine, we will 
abandon this case. If they can make it appear that the Bible is 
nothing more than a manual of sectarianism they can establish for 
infidelity all that it has ever claimed against its authority or 
divinity. 

Right here -I wish to refer the Court again to the case of 
Vidal et al. v. Girard's Executors^ and I will read from page 20O 
of 2 Howard's Reports : 

" Why may not the Bible, and especially the New Testa- 
ment, without note or comment, be read and taught as a divine' 
revelation in the college ; its general precepts expounded, its evi- 
dences explained and its glorious principles of morality inculcated ? 



Argument of George R. Sage. 183 

Minor et al. -v. Board of Education of Cincinnati ct al. 

What is there to prevent a work, not sectarian, upon the general 
evidences of Christianity, from being read and taught in the college 
by lay teachers ? Certainly there is nothing in the will that pro- 
scribes such studies. Above all the testator positively enjoiifs 
'that all the instructors and teachers in the college shall take pains 
to instill into the minds of the scholars the purest principles of 
morality, so that on their entrance into active life they may, from 
inclination, and habit, evince benevolence towards their fellow 
creatures, and a love of truth, sobriety and industry, adopting at the 
same time such religious tenets as their matured reason may enable 
them to prefer.' Now, it may well be asked, what is there in all 
this, which is positively enjoined, inconsistent with the spirit or 
truths of Christianity ? Are not these truths all taught by Christi- 
anity, although it teaches much more ? Where can the purest 
principles of morality be learned so clearly or so perfectly as from 
the New Testament ? Where are benevolence, the love of truth, 
sobriety and industry so powerfully and irresistibly inculcated as in 
the sacred volume ? The testator has not said how these great 
principles are to be taught, or by whom, except it be by laymen, 
nor what books are to be used to explain or enforce them. All 
that we can gather from his language is, that he desired to exclude 
sectarians and sectarianism from the college, leaving the instructors 
and officers free to teach the purest morality, the love of truth, 
sobriety and industry, by all appropriate means ; and, of course, 
including the best, the surest and the most impressive." 

The decision of the Court, it is stated was, in this case, unan- 
imous. I cite it, reminding your Honors that the Chief Justice 
was a devout Catholic, to show that the Bible, without note or com- 
ment, is recognized by the highest court of the land as the purest and 
best source of morality as well as of religion, and as a book not 
sectarian in its character or teachings. 

Mr. Webster, in his argument upon the hearing of that case, 
had something to say in answer to those objections to the religious 
instruction of youth which rest on the differences of sects. My 
friends for the defense seemed to be conscious that he would be 
quoted against them, and they saw fit to insinuate that Mr. Web- 
ster was speaking as a lawyer for a fee. Well, that is not the only 
case in which lawyers have received retainers before coming into 
court, and I merely suggest that it is not quite safe for my friends 
to claim that the fee answers the argument. In one case some- 
what celebrated, Mr. Webster intimated to counsel who took 



184 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

exception to his appearance for the Commonwealth, that it would 
be quite as well to content themselves with answering his argument 
§0 far as they were able instead of carping at his presence. 

I will now read two or three paragraphs from Mr. Webster's 
argument. 

Judge Storer. That argument was published by a committee 
of citizens of Washington and circulated as a tract. 

Mr. Sage. Yes, sir ; and if your Honor please, there was pre- 
fixed to that publication the following extract from the works of 
Plato : 

"Socrates. If, then, you wish public measures to be right and 
noble, virtue must be given by you to the citizens. 

" Alcibiades. How could any one deny that ? 

" Socrates. Virtue, therefore, is that which is to be first pos- 
sessed, both by you and by every other person who would have 
direction and care, not only for himself and things dear to himself 
but for the State and things dear to the State. 

" Alcibiades. You speak truly. 

" Socrates. To act justly and wisely (both you and the State), 

YOU MUST ACT ACCORDING TO THE WILL OF GoD. 

" Alcibiades. It is so." 

I will read from page 158, vol. vi, Webster's Works: 

" I now come to the consideration of the second part of this 
clause in the will, that is to say, the reasons assigned by Mr. Girard 
for making these restrictions with regard to the ministers of reli- 
gion ; and I say that these are much more derogatory to Christi- 
anity than the main provision itself, excluding them. He says that 
there are such a multitude of sects and such diversity of opinion, 
that he will exclude all religion and all its ministers, in order to 
keep the minds of the children free from clashing controversies. 
Now, does notj'this tend to subvert all belief in the utility of teach- 
ing the Christian religion to youth at all ? Certainly, it is a broad 
and bold denial of such utility. To say that the evil resulting to 
youth from the differences of sects and creeds overbalances all the 
benefits which the best education can give them, what is this but 
to say that the branches of the tree of religious knowledge are so 
twisted, and twined, and commingled, and all-run so much into and 
over each other, that there is therefore no remedy but to lay 
the axe at the root of the tree itself? It means that, and noth- 
ing less. Now, if there be any thing more derogatory to the 



Argument of George R. Sage. 185 

Minor et al. -v. Board of Education of Cincinnati ct al. 

Christian religion than this, I should like to know what it is. 
In all this we see the attack upon religion itself, made on its 
ministers, .its institutions, and its diversities. And that is the 
objection urged by all the lower and more vulgar schools of infi- 
delity throughout the world. In all these schools, called schools 
of rationalism in Germany, socialism in England, and by various 
other names in .various countries which they infest, this is the uni- 
versal cant. The first step of all these philosophical moralists and 
regenerators of the human race is to attack the agency through 
which religion and Christianity.are administered to man. But in 
this there is nothing new or original. We find the same mode of 
attack and remark in Paine's Age of Reason. At page 336 he says: 
' The Brahmin, the follower of Zoroaster, the Jew, the Mahome- 
tan, the Church of Rome, the Greek Church, the Protestant 
Church, split into several hundred contradictory sectaries, preach- 
ing, in some instances, damnation against each other, all cry out 
' Our holy religion !' ' » 

" We find the same view in Volney's Ruins of Empires. 
Mr. Volney arrays in a sort of semicircle the different and conflict- 
ing religions of the world. 'And first,' says he, ' surrounded by a 
group in various fantastic dresses, that confused mixture of violet, 
red, white, black and speckled garments, with heads shaved, with 
tonsures, or with short hairs, with red hats, square bonnets, pointed 
mitres, or long beards, is the standard of the Roman pontifF. On 
his right you see the Greek pontifF, and on the left are the stand- 
ards of two recent chiefs (Luther and Calvin), who, shaking ofF 
a yoke that had become tyrannical, had raised altar against altar in 
their reform, and wrested half of Europe from the Pope. Behind 
these are the subaltern sects, subdivided from the principal division. 
The Nestorians, Eutychians, Jacobites, Iconoclasts, Anabaptists, 
Presbyterians, Wickliffites, Osiandrians, A4anicheans, Pietists, 
Adamites, the Contemplatives, the Quakers, the Weepers, and a 
hundred others, all of distinct parties, persecuting when strong, 
tolerant when weak, hating each other in the name of the God of 
peace, forming such an exclusive heaven. in a religion of universal 
charity, damning each other to pains without end in a future state, 
and realizing in this world the imaginary hell of the other.' 

" Can it be doubted for an instant that sentiments like these are 
derogatory to the Christian religion ? And yet on grounds and 
reasons exactly these, not like these, but exactly these, Mr. Girard 
founds his excuse for excluding Christianity and its ministers from 
his school. He is a tame copyist, and has only raised marble walls 
to perpetuate and disseminate the principles of Paine and of 
Volney." 



1 86 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

So also from page 161: 

" But this objection to the multitude and differences of sects 
is but the old, story, the old infidel argument. It is notorious that 
there are certain great religious truths which are admitted and 
believed by all Christians. All believe in the existence of a God. 
All believe in the immortality of the soul. All believe in the res- 
ponsibility, in another world, for our conduct in this. All believe 
in the divine authority of the New Testament. Dr. Paley says 
that a single word from the New Testament shuts up the mouth 
of human questioning, and excludes all human reasoning. And 
can not all these great truths be taught to children without their 
minds being perplexed with clashing doctrines and sectarian con- 
troversies ? Most certainly they can. 

"And to compare secular with religious matters, what would 
become of the organization of society, what would become of man 
as a social being, in connection with "the social system, if we 
applied this mode of reasoning to him in his social relations ? We 
have a constitutional government, about the powers, and limita- 
tions, and uses of which there is a vast amount of differences of 
belief. Your Honors have a body of laws, now before you, in 
relation to which differences of opinion, almost innumerable, are 
daily spread before the courts ; in all these we see clashing doc- 
trines and opinions advanced daily, to as great an extent as in the 
religious world. 

"Apply the reasoning advanced by Mr. Girard to human insti- 
tutions, and you will tear them all up by the root ; as you would 
inevitably tear all divine institutions up by the root, if such reason- 
ing is to prevail." 

I will read one more paragraph, from page 163: 

"The truth is, that those who really value Christianity, and 
believe in its importance, not only to the spiritual welfare of man, 
but to the safety and prosperity of human society, rejoice that in 
its revelations and its teachings there is so much which mounts 
above controversy, and stands on universal acknowledgment. 
While many things about it are disputed or are dark, they still 
plainly see its foundation, and its main pillars ; and they behold in 
it a sacred structure, rising up to the heavens. They wish its 
general principles, and all its great truths, to be spread over the 
whole earth. But those who do not value Christianity, nor believe 
in its importance to society or individuals, cavil about sects and 
schisms, and ring monotonous changes upon the shallow and so 



Argument of George R. Sage. 187 

Minor et ah -v. Board of Education of Cincinnati et ah 

often refuted objections founded on alleged variety of discordant 
creeds and clashing doctrines." 

Then my friends insist — one of them that the reading of the 
Bible in the schools is perfunctory, a "dog-trot" exercise — the 
other, that it is an act of worship, on a level, as to right, with the 
worship of the Virgin Mary. If the reading were only the formal, 
lifeless ceremony described by Judge Stallo, why did not the Board 
yield to the protest of the thousand citizens against the resolutions ? 
Then, if it be, as suggested by Judge Hoadly, an act of worship — 
a Protestant exercise, exactly as the worship of the Virgin is a 
Catholic exercise, why was he willing that selections from the 
Bible to be found in McGufFey's Readers should be read in the 
schools ? Has he authority for maintaining that one portion of 
the Bible is less sacred than another ? Or does it make a dif- 
ference that a chapter is read not from the Bible itself, but from a 
book to which it has been transferred ? 

But the Board assign as another reason for the total prohibi- 
tion of religious instruction, that there are citizens taxed for the 
support of the schools who are of various sects and opinions, and 
who believe that the reading of the Holy Bible without note or 
comment is not beneficial to the children in the schools, and not 
only not beneficial, but hurtful. And the Board, and the majority 
who voted for the resolutions, plead that the reading of the version 
commonly used, "in the presence and hearing of Roman Catholic 
children is regarded by the members of the Roman Catholic 
Church as contrary to their rights of conscience." Now to what 
conclusion did the majority of the Board come upon these objec- 
tions ? Let us concede, for the sake of the argument, that these 
objectors have in keeping the consciences of their children. Here 
is a tax-payer who says, " I do not believe in religion or in the 
Bible, and I do not wish my children to learn anything not in 
accordance with my belief." Then comes a sectarian — a Catholic, 
if you please — and says, " My church is the only infallible teacher 
and interpreter of the Bible. I will not consent that my child 
,hear anything but the teachings of my church." Here is the 
Constitution, with the declaration that religion is essential to good 
government, and that is announced as the first reason for the estab- 



Superior Court of Cincinnati. 



Minor et al. v. Board of Education of Cincinnati et al. 



lishment of common schools. Here is the solemn admission of 
the Board, and of every member of the Board, that religious instruc- 
tion is indispensable to fit the children attending the schools to be 
good citizens, and the further admission that the schools furnish 
the only religious instruction imparted to many of those children. 
Does the Board propose to those who object, to excuse their chil- 
dren from attendance upon the religious instruction given in the 
schools? Does it offer to give to those parents who desire it, sole 
charge of the religious instruction of their children, and yet adopt 
some plan to convey the elemental truths of religion to the minds 
and hearts of those children who would else remain in total dark- 
ness ? Does it give the slightest heed to the ten thousand tax- 
payers who sent in their protest against the exclusion of the Bible 
and the prohibition of all religious instruction ? Not at all. Not 
one of these things- did the Board even attempt; but in the face of 
the constitutional provision, and with the full knowledge that they 
were thereby withholding from large numbers of children instruc- 
tion indispensable to fit them to go forth from the schools to their 
places as citizens, the Board deliberately enacted a total prohibition,, 
not of the Bible alone, but of all religious instruction. If this 
were done to appease the conscience of the Catholic, the Jew, or 
the unbeliever, will counsel explain to us by what right any one, or 
all of these classes can assume control of the consciences of those 
who do not agree with them? By what warrant is their conscience 
to be made superior to the Constitution ? The Constitution 
recognizes religion and the Bible. Why is not the Constitution 
entitled to as high regard from the School Board as the consciences 
of those who repudiate religion and the Bible, or those who recog- 
nize only one sect or church ? It hurts the consciences of these 
tax-payers, does it, to have the elemental truths of religion taught 
in the schools — not to their children, but to those children who 
would otherwise be totally ignorant of that knowledge which all 
admit to be indispensable for their welfare and the welfare of the 
State? If this be the plea, it is the conscience of intolerance that 
is hurt. It is the old plea of the despot, when he sent martyrs to 
the stake for the sake of his conscience. The difference is in 
degree, not in kind. 



Argument of George R. Sage. 189 

Minor et al. •v. Board of Education of Cincinnati et al. 

But this argument assumes, that the parent has an absolute 
right to control the education — intellectual, moral and religious — ■ 
of his children, and that a sect may dictate to the State the course 
of public education. Both propositions are unsound. The State 
has a paramount interest in the children who are soon to control its 
affairs, and has, moreover, the right to insist that what the law has 
defined as indispensable for the education of those children, shall 
be taught them. Neither parent nor church has any right to inter- 
pose private or sectarian objections. The State has a right to edu- 
cate them, and to educate them in every thing necessary to make 
them good citizens. I refer your Honors to a case reported in 4th 
Wharton. This was a case where a child had been taken from his 
parents and placed in a House of Refuge, for reformation. There 
was no conviction, nor charge of crime — simply a showing of 
incorrigibility. The father sued out a writ of habeas corpus. 
Upon the hearing, the Court said (I read from page 11) : 

Ct It is to be remembered that the public has a paramount 
interest in the virtue and knowledge of its members, and that of 
strict right the business of education belongs to it. That parents, 
are ordinarily intrusted with it, is because it can seldom be put in 
better hands ; but where they are incompetent or corrupt, what is 
there to prevent the public from withdrawing their faculties, held, 
as they obviously are, at its sufferance ? The right of parental 
control is a natural, but not an inalienable one. It is not excepted 
by the Declaration of Rights out of the subjects of ordinary legis- 
lation ; and it consequently remains subject to the ordinary legisla- 
tive power, which, if wantonly or inconveniently used, would soon 
be constitutionally restricted, but the competency of which, as the 
government is constituted, can not be doubted. 

I refer also to Story's Equity, sec. 1341: 

" The jurisdiction of the Court of Chancery extends to the 
care of the person of the infant, so far as necessary for his protec- 
tion and education ; and as to the care of the property of the infant, 
for its due management and preservation, and proper application for 
his maintenance. It is upon the former ground, principally, that is 
to say, for the due protection and education of the infant, that the 
•Court interferes with the ordinary rights of parents, as guardians 
by nature, or by nurture, in regard to the custody and care of their 



190 Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et al. 

children. For although, in general, parents are intrusted with the 
custody of the persons and the education of their children, yet 
this is done upon the natural presumption that the children will be 
properly taken care of, and will be brought up with a due education 
in literature, and morals, and religion ; and that they will be treated 
with kindness and affection. But whenever this presumption is 
removed ; whenever, for example, it is found that a father is guilty 
of gross ill treatment or cruelty towards his infant children, or that 
he is in constant habits of drunkenness and blasphemy, or low and 
gross debauchery ; or that he professes atheistical or irreligious 
principles ; or that his domestic associations are such as tend to the 
corruption and contamination of his children ; or that he other- 
wise acts in a manner injurious to the morals or interests of his 
children ; in every such case the Court of Chancery will interfere, 
and deprive him of the custody of his children, and appoint a suit- 
able person to act as guardian, and to take care of them, and to 
superintend their education." 



See cases cited in support of every proposition stated in the 
text. Also Tyler on Infancy and Coverture, p. 243, where the 
authorities are collected. 

In the light of these authorities it is easy to see how narrow is 
the ground upon which the Board and the counsel for the Board 
undertake to stand. Here is a grand system of public instruction 
for the public welfare — for the benefit, yes, for the safety, of the 
State, made to bend to the prejudices of those who seek to engraft 
upon it ideas not of liberty, nor of American growth, but of intol- 
erance, and of foreign growth — ideas which, followed to their 
practical results, drove our forefathers from the Old World to 
establish in the New, the freedom we enjoy. 

Then it was objected by counsel that reading the Bible with- 
out note or comment would not answer the purpose, for the reason 
that the sacred text would be unintelligible to children, without 
appropriate explanations. The argument is, that there is not 
enough religious instruction in the schools, the conclusion is that, 
therefore, there should be none at all. We were referred to the 
doctrines of election and predestination, of justification by faith, 
or works, to Calvinism and Armenianism^ and the metaphysics of 
theology, and the subtleties of belief were put before the Court to 
illustrate the difficulties to which the reading of the sacred text 



Argument of George R. Sage. iqi 

Minor et al. ■v. Board of Education of Cincinnati et al. 

would introduce the children. But that was all a fancy sketch 
The uniform testimony of those in charge of the schools in years 
past, — and back to their first establishment — is that the reading of 
the Bible has been in the highest degree beneficial. Children to 
whom the Bible is read without note or comment, take in 
the plain obvious meaning of those simple, yet sublkne teachings 
upon which all religion and religious sentiment rest. The Chris- 
tian religion is the only religion ever known on earth, so simple as 
to be within the comprehension of the child lisping its prayer at 
its mother's knee, and at the same time so grand and sublime as to 
more than fill the greatest intellect God has vouchsafed to man. 

Another objection is that the Bible is not the basis of moral- 
ity , — that morality is older than the Bible. It is said that morality 
was before the world, — before time, — that it is eternal. This I 
will admit. Of course morality is as eternal as truth itself. But 
we are told of precepts, of teachings of morality, which it is 
claimed are older than the Bible, and of moralists whose teachings 
are as pure as the teachings of the Bible. Suppose I admit all 
this. Suppose I admit all that they claim for those teachings. 
Let them answer me this : Why is it that the Bible has a power 
which is to-day represented by the civilization and intelligence of 
the world ; while all those other teachings of morality, pure though 
they may have been, have fallen dead from the lips or pens of their 
authors ? Who, of the masses, reads the letters of Seneca or the moral 
teachings of Plato, or Socrates, or Confucius? Who is controlled 
by them? Who knows or cares anything about them? There 
never has been a system of morality that had any power behind it 
to give it success and efficacy among the nations of the earth, 
excepting that embraced in the teachings of the Holy Bible. The 
morality of the Bible is the morality of the Constitution. Relig- 
ion first, morality second, and knowledge third, are declared to be 
essential to good government, and therefore schools and the means 
of instruction are to be encouraged. Are we to suppose that the 
State having recognized a religion which embraces all the pure mor- 
ality ever taught, intended to recognize another morality than the 
morality of that religion ? Of what use to the State is religion if 
the morality it teaches is to be discarded and effete heathen systems 
to be introduced in its stead ? No, it is all idle to talk of those old 



iyl Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

systems of morality. They have been dead and buried for ages. 
But the morality of Christianity lives and grows, and gathers force, 
and it will continue to grow until it fills the whole earth. It is 
true, as my friend, Judge Stallo, said, " that the truths of Christi- 
anity were uttered for the first time among a people despised by the 
nations, and in subjection to the Romans," — by one who had not 
where to lay his head, — to a little band of fishermen, the hum- 
blest of those among whom they lived. It is true, moreover, that 
He who proclaimed those truths was condemned and crucified as a 
malefactor, and that his disciples forsook him and fled. It is further- 
more true, that the religion He taught has been assailed by persecu- 
tion, by corruption, and by power ; and that notwithstanding all, it 
has spread and grown until it controls not only the religious but 
the civil institutions of the civilized world, and all that is pure in 
morals, all that is true in religion, all that is stable in human affairs, 
we owe to its influence. 

As the voyager .sails along the coast at night, he may see 
lights as bright and clear as the port light, far away in the distance. 
But if he observe those lights carefully, he will discover that they 
are not constant. They appearand disappear. They shine and are 
obscured. They shine again, and again there is darkness. If he 
inquire of the helmsman he will learn that those are flash lights 
which indicate the rocks and reefs, upon which, if the ship be 
headed for them, she would certainly be destroyed and all on board 
lost. . But the light away ahead, clear and steady, — which upon 
first view appears to be the same as the flash lights, — but 
which never disappears or varies, is the port light, and if the helms- 
man head the ship for that light he will bring her to her moorings 
and the passengers to their homes in safety. 

Now this illustrates precisely the difference between human 
institutions of morality and the morality of the Bible. The mor- 
ality of the Bible beams upon us with the heavenly light of inspir- 
ation. It is a morality that leads up to heaven, the home we all 
hope to reach at last. 

In answer to the proposition that morality is independent of 
religion, I wish to refer again to the argument of Mr. Webster in 
the Glrard will case. I read from page 152, vol. vi, Webster's 
Works : 



Argument of Geogre R. Sage. . 193 

Minor et al. -v. Board of Education of Cincinnati et al. 

" In the next place, this scheme of education is derogatory to 
Christianity, because it proceeds upon the presumption that the 
Christian religion is not the only true foundation, or any neces- 
sary foundation, of morals. The ground taken is, that religion is 
not necessary to morality ; that benevolence may be insured- 
by habit, and that, all the virtues may flourish, and be safely left 
to the chance of flourishing, without touching the waters of 
the living spring of religious responsibility. With him who thinks 
thus, what can be the value of the Christian revelation ? So the 
Christian world has not thought ; for by that Christian world, 
throughout its broadcast extent, it has been, and is, held as a funda- 
mental truth, that religion is the only solid basis of morals, and that 
moral instruction not resting on this basis is only a building upon 
sand. And at what age of the Christian era have those who pro- 
fessed to teach the Christian religion, or to believe in its authority 
and importance, not insisted on the absolute necessity of inculcating 
its principles and its precepts upon the minds of the young? In 
what age, by what sect, where, when, by whom, has religious 
truth been excluded from the education of youth ? Nowhere ; 
never. Everywhere, and at all times, it has been, and is, regarded 
as essential. It is of the essence, the vitality, of useful instruction." 

The next objection is, that if we teach religion at all in the 
schools, we are bound to teach all that is necessary for the salva- 
tion of the souls of children, and that therefore teaching the Scrip- 
tures without note or commentis not in accordance with the full 
measure of our obligations ; and that if we undertake to teach what 
is sufficient for the salvation of the children, we at once interfere 
with the conscience of those all about us. 

Now if my friend, Judge Hoadly, had stopped to consider for 
what purpose religious education is to be communicated in the. 
schools, he would never have put forward this proposition so ingen- 
iously and prominently argued. 

If the object were the spiritual welfare of the children, then 
I admit the proposition as he states it. But as I said before, the 
proposition that religion is essential to good government, is for the 
benefit of the State, and it ought to be construed in that light. 
The State does not contemplate instruction in religion, for the spir- 
itual welfare of the children. That is not the object. The great 
object is to give to the children a knowledge of the truths upon 
which all religion is based, so that they shall be possessed of the 



194 . Superior Court of Cincinnati. 

Minor tt al. <v . Board of Education of Cincinnati et al. 

truths which furnish the highest sanction and strongest authority to 
the law of the State. What is necessary for that is the measure 
of instruction to be given. All the religious sects — Protestants, 
Catholics and Jews- — acknowledge the religious truths -upon which 
the State depends. And those are the truths which are to be 
taught in the schools, and those only are necessary. The State has 
no concern for — has nothing to do with — the spiritual welfare of 
the citizens. It deals with temporal affairs and temporal relations 
alone. Thus perjury which is committed to the injury of the 
State or of a fellow-citizen, is punished as a crime, but if it go 
not to that extent, the State pays no heed to it. Now comes a 
citizen, — of what sect or belief is not material, — and says : " I 
instruct my children, or cause them to be instructed by the teach- 
ers of my faith, in all that the State requires. I further instruct 
them in the peculiar tenets of my religion." By the rules which 
have been in force for twenty-five years, the State, through the 
Board of Education, excuses those children from the religious teach- 
ings of the schools. That is quite as much as the parents have the 
right to ask. The State can not afford to omit in the training of 
children who depend solely on the schools for their education, that 
religious instruction which is necessary to good citizenship', to satisfy 
parents of other children, who do not believe that which the State 
has authoritatively declared, or do not wish to have any religious 
teachings conveyed, excepting those embraced in their particular 
faith. 

It is not for the Court to prescribe the measure of instruction 
to be given. That may be in the discretion of the Board. What 
we complain of is the total prohibition. The Board may exercise 
its discretion within bounds, but total prohibition is beyond al] 
bounds. 

Now I know what answer my friend, who is to follow me, 
will make to all this. He will insist that it is the duty of the 
Church to communicate this instruction, but not the duty of the 
State. But it is the plain duty of the State, in the public schools, 
to communicate instruction upon all subjects which are essential to 
the welfare of the State, and to make the pupils good citizens. 

It is alleged in the petition that there are many children who 
receive no instruction in religion or the Bible, except that imparted 



Argument of George R. Sage. ig$ 

Minor et al. -v. Board of Education of Cincinnati ct al. 

k\ the schools ; and that is admitted in the answer. Now, it is of 
no consequence what may be the duties of the Church, we are here 
to look at facts. The claims of society are not to be postponed or 
made subject to the duties or failures of any church, or any sect. 

No church, no sect, can go out into the highways and by- 
ways, and force children into its Sunday school or house of wor- 
ship. It is demanded by the Constitution, and it is indispensable 
to the State that these should have the elementary truths of Chris- 
tianity communicated to them in the schools, to fit them to be good 
citizens. It is the duty of the State, its imperative duty, to com- 
municate that instruction. 

The next proposition is that the State has no right to impart 
religious instruction, under any circumstances ; that the State has 
no right to look to anything but the temporal welfare, interests and 
relations of its citizens ; that all things spiritual devolve upon the 
spiritual authorities — that is to say, upon the Church ; and that the 
State never will be wholly and entirely free until she shall be 
wholly and entirely divorced from religion. 

Then why, will my friends explain, did the framers of the 
Constitution place the recognition of religion as essential to good 
government, in the same sentence with the provision for the estab- 
lishment of schools ? We are not in a convention to decide upon 
what should of right be the organic law. We are discussing 
questions depending upon a Constitution already framed and opera- 
tive, and by that Constitution, and every provision of it, we are 
bound. 

Now I wish to call attention to some facts in the administra- 
tion of the affairs of the State, which I can not reconcile with the 
proposition that the State has no right to provide for instruction in 
religion under any circumstances. There are a thousand convicts 
in the State penitentiary. A large proportion of them — more than 
half — when placed in that institution were precisely in the condition 
to which the School Board of Cincinnati would reduce the chil- 
dren in the schools, so far as it has power — that is to say, entirely 
without religious instruction or knowledge. The State employs a 
chaplain at the public expense. He conducts devotional services 
every day, in presence of all the prisoners. On the Sabbath relig- 
ious meetings are held and the prisoners are gathered in classes and 



ip6 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

receive Sabbath school instruction. Why is all this ? Obviously 
because the State recognizes the fact that religious teachings and 
devotional exercises are the most powerful agencies that can be 
brought to bear for the reformation of those who have been proven 
to be unfit to be at large. Is there anything wrong in this ? The 
right of conscience is indefeasible. It can not be rendered null or 
void. The Constitution protects it at all times and under all cir- 
cumstances. It applies to all alike, and you can take it away from 
none. The convicted murderer, being conducted to the gallows, 
can claim it, and the State can not deprive him of it. The same 
logic which banishes religion from the schools, banishes it from the 
prison. Are we then to be compelled, upon objection being made, 
to exclude the teachings of religion from the prison ? If so, will 
it be safe to set at liberty any one confined in punishment of crime ? 
Would not the rigor of imprisonment, without the humanizing 
and softening influences of religious instruction make the subject 
of it only more dangerous to society ? 

Take a case nearer home. We have in this city a House of 
Refuge for the care and reformation of children. It is supported 
by taxation. The law empowers the authorities to remove from 
the custody of parent or guardian, upon proof that he is incapable 
or unwilling to exercise the proper care or discipline, a child who is 
incorrigible or vicious, and commit him to the guardianship of the 
directors. So, also, a child may be committed where it is shown 
that he is in danger of being brought up to lead an idle and immoral 
life, or that the father does not provide for his support, or is an 
habitual drunkard. The law makes no provision in regard to 
religious instruction, but it provides that the rules for the manage- 
ment of the institution shall be operative upon their adoption by 
the directors with the concurrence of the mayor of Cincinnati, and 
of the Superior Court. The existing rules were adopted in i860, 
when the court was composed of Judges Storer, Spencer, and my 
friend, Judge Hoadly, and they were approved by the full bench. I 
have here an official copy. They require the Standing Committee 
to "cause the pulpit to be filled every Sabbath in the absence of 
the chaplain, or in case of vacancy." It is made the duty of the 
Committee on Schools and Library, to " provide Sabbath school 
instruction." The Committee on Indentures are to "procure suit- 



Argument of George R. Sage. 197 

Minor et al. -v. Board of Education of Cincinnati et al. 

able places for inmates worthy of release, in families of good moral 
character, and such as may be expected rightly to educate and care 
for the reformation and religious training of their apprentices." 
"They shall give a Bible and letter of advice relative to his or her 
course of life, to each inmate when apprenticed." The Superin- 
tendent "shall be regarded as occupying the place of a father of the 
family, and by an exemplary Christian life, and a kind and patient 
inculcation of moral and religious principles — the surest elements 
of success — endeavor to teach the youth to govern themselves." 
The Matron is required to explain to the female inmates "the 
unhappy results attending a wicked and profligate life, and endeavor 
to unfold to them the blessings of a moral and religious life." 

Now I would like to ask my friend Judge Hoadly, and I appeal 
from him as an attorney, to himself as a judge — by what authority, 
or upon what principle, the court approved the system of religious 
instruction in use at the House of Refuge, if the State has no right 
to impart religious instruction under any circumstances ? If it 
be unconstitutional to teach in the schools what the Constitution 
declares to be essential to good government, is it not equally so in 
the House of Refuge ? Is not the right of conscience the same in 
both cases ? Does the law which takes from an incompetent or 
unworthy parent, the custody of a vicious or incorrigible child, 
deprive him also of his constitutional rights ? Or must we con- 
cede that the State has secured to its citizens the right to put all 
things at risk, and make the reformation of those who are vicious 
or criminal, impracticable, if not impossible? And if it be con- 
stitutional and politic to teach the elemental truths of religion for 
the reformation of children in the House of Refuge, can it be 
unconstitutional or impolitic to teach the same truths to children in 
the schools, and thereby keep them out of the House of Refuge ? 

Publicists have always given it as one of the chief reasons for 
the establishment of schools, that they are one of the great agents 
for the prevention of crime. It is better to use prevention than 
to apply punishment, or wait until reformatory measures become 
necessary. 

The State Reform School, like the House of Refuge, is 
devoted to the reformation not only of youth who are criminal, but 
those who are incorrigible, or who, by reason of defect in their 
14 



198 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

education at home, are unfit to be at large. A child may be taken 
from his parents and placed in that school without their consent, 
and without being charged or found guilty of any crime. Attempts 
have been made to question this power. The question was raised 
in Pennsylvania, in 1838, and the Supreme Court decided that 
society had a paramount interest in the child; that the parent was 
merely the guardian, and that his guardianship was limited, and sub- 
ject to the higher claim of society The State Reform School 
contains some three hundred boys. Religious instruction is imparted 
about as in the House of Refuge. My friend, Judge Matthews, 
visited that institution last summer, and upon his return gave an 
account of the services on the Sabbath, which was published in the 
city papers. The Sabbath school lesson was in the Gospel of 
Matthew. The exercises at the chapel were opened by singing 
hymns from a Sabbath school book of music. The boys all joined 
in the singing. Then all, with bowed heads, united audibly and 
with great solemnity, in repeating the Lord's Prayer. In the 
course of the exercises, one of the "elder brothers" delivered an 
expository discourse to the school, based upon the morning lesson, 
which it was said would compare favorably with the sermons usu- 
ally delivered from the sacred desk. That young preacher had 
received all his education, both intellectual and religious, in that 
institution. He was brought there originally as a vagrant and crim- 
inal. His only means of subsistence, had been petty larceny. He 
could neither read nor write. ' He knew nothing except how to lie 
and to steal. Under the discipline and influence of the Reform 
School, he learned how to work and to study, and was fitted for 
the work of a teacher of the institution, and to be a useful member 
of society. He was one of seven of the lC elder brothers " in 
charge of " families " in the school, all of whom were, like him, 
indebted to the influences of the school for all their education. 
Now, what would that school be worth without the aid of religion ? 
Yet if it be unconstitutional to teach the elemental truths of religion 
in the common schools, it is unconstitutional to teach them in the 
Reform School. As the boys in the Reform School have the same 
rights of conscience as others, and as their parents, from whom 
they may have been taken, for reformation, have all the rights of 
parents of children in the common schools of Cincinnati, upon 



Argument of George R. Sage. 199 

Minor et al. f. Board of Education of Cincinnati et al. 

what construction of the Constitution, are we to say that religious 
instruction shall be imparted in one case and not in the other ? By 
what rule, or with what consistency shall it be withheld from those 
children whose minds are yet free, and open, whose hearts are yet 
pure, and who are prepared to receive its truths and derive from 
them their best influences, and thereby be saved from the necessity 
of reformatory measures, at the public expense ? 

At its last session, the General Assembly made provision for 
a reformatory school for girls, and by express enactment, for the 
religious instruction of those who should become inmates. My 
friend, Judge Matthews, is one of the directors of that institution. 
I have here a copy of the by-laws and regulations, drafted, as I am 
informed, by him. Religious instruction is enjoined — u daily relig- 
ous instruction and prayers in the school, and regular devotional 
services on the Sabbath." " A Bible and a letter of advice," are to 
be given to each inmate when indentured, and when discharged 
from the institution. Now, would it be safe to dispense with 
religion — -to prohibit all religious instruction, and exclude the Bible 
from these reformatory institutions ? I make these references with 
the kindest feeling. I am perfectly satisfied that every one of the 
counsel in this case speaks from his earnest convictions. I arraign 
no one for inconsistency. I know that no one has any higher 
regard than my friend who is to follow me, for everything which 
those who believe in religion hold sacred. What I wish to show 
is, that their propositions are unsound, their conclusions wrong, and 
that the policy they advocate, if pursued to its logical results, will 
prove most dangerous and destructive. We must look to the good 
of society, to the welfare of the State, and no construction of the 
Constitution is correct or safe which can not be applied to all cases, 
and under all circumstances. It appears to me, that my friends 
have held up before them, and magnified the ill-considered com- 
plaints of a few short-sighted objectors, until they have completely 
shut out from their view the great interests of the State involved — 
interests which they themselves have seen and recognized when 
their minds were free, and their vision unobscured. It appears to 
me that by the same principle upon which instruction in the ele- 
mental truths of religion is to be given in reformatory institutions, 
it is to be given in the common schools. One great purpose of the 



200 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

schools is the prevention of crime and depravity, and that is in part 
what the Constitution means when it declares that religion is essen- 
tial to good government, and makes the declaration a reason for the 
establishment of schools. 

There is nothing in all this which tends to the establishment 
of a church by the State. The Constitution of the United States 
contains a specific provision against an establishment of religion by 
Congress. Notwithstanding that provision, the Government has 
from the first appointed chaplains for the army and navy, and main- 
tained them at the public expense. In 1853, petitions were pre- 
sented to Congress for the abolition of the office of chaplain 
wherever it existed. These petitions were referred to the Judiciary 
Committees. Mr. Meacham, from the Committee of the House, 
made a report on the 21st of March, 1854. Senator Badger 
reported to the Senate. 

It was claimed that the appointment of chaplains was a viola- 
tion of the liberty of conscience, that it was bringing the Church 
into connection with the State, that it was an establishment of reli- 
gion. Mr. Meacham said in his report : 

" What is an establishment of religion ? It must have a creed 
defining what a man must believe ; it must have rites and ordi- 
nances, which believers must observe ; it must have ministers of 
defined qualifications to teach the doctrines and administer the rites ; 
it must have texts for the submissive and penalties for the non-con- 
formist. There never was an established religion without all these. 
* * * Had the people during the Revolution had a suspicion of 
any attempt to wage war against Christianity, that Revolution would 
have been strangled in its cradle. At the time of the adoption of 
the Constitution and the amendments, the universal sentiment was 
that Christianity should be encouraged, not any one sect. Any 
attempt to level and discard all religion would have been received 
with universal indignation. * * * But we beg leave to rescue 
ourselves from the imputation of asserting that religion is not 
needed to the safety of civil society. It must be considered as the 
foundation on which the whole structure rests. Laws will not 
have permanence or power without the sanction of religious senti- 
ment — without a firm belief that there is a Power above us that 
will reward our virtues and punish our sins. In this age there can 
be no substitute for Christianity; that in its general principles is 
the great conservative element on which we must rely for the purity 



Argument of George R. Sage. 201 

Minor et al. -v. Board of Education of Cincinnati et al. 

and permanence of free institutions. That was the religion of the 
founders of the republic, and they expected it to remain the religion 
of their descendants. There is a great and very prevalent error 
on this subject, in the opinion that those who organized this gov- 
ernment did not legislate on religion. They did legislate on it 
by making it free to all, ' to the Jew and the Greek, the learned 
and unlearned.' The error has arisen from the belief that there is 
no legislation unless in permissive or restricting enactments. But 
making a thing free is as truly a part of legislation as confining it 
by limitations ; and what the Government has made free it is bound 
to keep free." 

Senator Badger, in his report, used the following language : 

" Our fathers were true lovers of liberty, and utterly opposed 
to any constraint upon the rights of conscience. They intended, 
by this amendment, to prohibit an 'establishment of religion,' such 
as the English Church presented, or any thing like it. But they 
had no fear or jealousy of religion itself; nor did they wish to see 
us an irreligious people ; they did not intend to prohibit a just 
expression of religious devotion by the legislators of the nation, 
even in their public character as legislators ; they did not intend to 
send our armies and navies forth to do battle for their country with- 
out any national recognition of that God on whom success or fail- 
ure depends ; they did not intend to spread over all the public 
authorities and the whole public action of the nation the dread and 
revolting spectacle of atheistical apathy. Not so had the battles 
of the Revolution been fought and the deliberations of the Revolu- 
tionary Congress been conducted. On the contrary, all had been 
done with a continual appeal to the Supreme Ruler of the world, 
and an habitual reliance upon His protection of the righteous cause 
which they commended to His care." 

Again, the United States Government has at different times 
granted subsidies to various religious denominations for the sup- 
port of missionaries to teach the Christian religion among the 
Indian tribes. Not because the Government wished to advance the 
particular church employing those missionaries^ or the cause of 
religion, but because it is a fact recognized by the legislation of the 
country, by all the history of the country, that religion is one of the 
main, one of the indispensable elements of civilization. And in a 
treaty with the Potawatomies and other tribes the Government 
expressly reserved for the use of the Catholic Church — and it did 



202 Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et al. 

perfectly right in doing so — one-half of three sections of land, set 
apart for educational purposes under its control. Thus the Govern- 
ment has acted upon the theory that it is proper for the State to 
make use of religion as a civilizing agent, and a means of preserv- 
ing; social order. 

I have now considered all the reasons offered by the Board 
and by counsel in support of trie resolutions of which we complain. 
They all rest upon propositions which have never been recognized 
nor acted upon by the Government in any period of its history. 
They assume that liberty of conscience gives to every citizen the 
right to demand that long cherished institutions shall be recast 
whenever he chooses to complain. Upon the claim that the read- 
ing of the Bible, as a general exercise in the schools, was not 
expedient, the Board determined, what ? Not to make some other 
provision, which, while it would leave no possible ground of com- 
plaint to any one, would furnish instruction in religion to those 
who otherwise would be in total ignorance, but it at once resolved 
to exclude the Bible altogether, and prohibit all religious instruc- 
tion. The declaration that religion morality and knowledge are 
essential to good government, was carried into the Constitution from 
the ordinance of '87, where it was connected with the require- 
ment, and with that only, that schools and the means of education 
should forever be encouraged. That provision of the ordinance 
was, moreover, one of the articles of compact between the original 
States, and the people and States in the territory out of which the 
State of Ohio was carved, and it was forever to remain unaltera- 
ble, unless by common consent. We are therefore under the 
highest obligation faithfully to respect and observe the requirement. 
It has hitherto been so respected and observed with the happiest 
results. Our schools have come to be a pride and glory to the 
State. Freedom, civil and religious, is the boon of every citizen. 
The School Board of Cincinnati has aimed the first blow — and it 
is a deadly blow — at a vital principle of the school system, without 
right, without reason, without justification. We are told that the rule 
of 1842, which provided that scholars, whose parents objected, could 
be excused from the opening exercise, has been obsolete some twenty 
years. If so, it was competent for the Board to revive it, and if a 
general exercise in the morning was not expedient, that was no 



Argument of George R. Sage. 203 

Minor et al. -v. Board of Education of Cincinnati et al. 

reason for abolishing all religious instruction. This cause has been 
argued as if nothing were involved but the reading of the Bible. 
Counsel have not touched the first resolution, which prohibits all 
religious instruction. Keeping in view the admission in the plead- 
ings that religious instruction is indispensable to make children good 
citizens, and that that is one object for which schools are estab- 
lished, the members of the Board had no right to pass to that 
extreme. It was their duty, if in their discretion they found that 
the general exercise was not expedient, to adopt some other expe- 
dient, which would furnish religious instruction in the schools for 
those children who they admit were there and would not otherwise 
receive it. 

We do not pretend to say that the Board, in the exercise of its 
discretion, could not change the order of the opening exercise ; 
nor that the plaintiffs have the right to come into court and claim 
that the Bible shall be read or used in a particular way. But we 
do claim that whereas the framers of the Constitution have given 
as the very first reason for the establishment of schools that reli- 
gion is essential to good government, it is directly against the Con- 
stitution — against the policy of the Government — for the School 
Board to decree that all religious instruction shall be prohibited in 
the schools. 

The Board could have done another thing. If the members 
were not willing that passages, which were not suitable, in their 
opinion, should be read to. the children, they could have adopted a 
plan adopted in more than one Sabbath school in this city. They 
could have announced a programme of Scripture reading for the 
year, and in the whole year have had passages read that would not 
touch any proposition to which any member of any sect would 
have any right to object. But the Board has not resorted to any 
of these expedients. It has proceeded on the hypothesis that it 
had the right to sweep away the whole system of religious instruc- 
tion and place the schools in antagonism with the policy of the State. 

But this case has its practical bearings, affecting the life, liberty 
and property of citizens. We have a system of oaths founded on 
a religious belief of some sort. The proper administration of 
justice, the ascertainment and enforcement of legal rights, depend 
very largely upon the binding sense of obligation to the Supreme 



204 Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et al. 

Being in the mind of the witness called to testify, and of the jury 
sworn to pass its verdict upon the testimony. It is true we apply 
no religious test to the witness or juror ; the Constitution forbids 
that ; but the framers of that instrument were careful to add that 
that provision should not be construed to dispense with oaths or 
affirmations. Exclude all religious instruction from the education 
of the child, and what sense of obligation will the man derive from 
the oath ? Discard the Bible, prohibit all knowledge of religion, 
and what value cculd be attached to an appeal to a Being of whom 
the witness had no knowledge ? How is it possible to administer 
the laws without relying upon the religion the School Board has 
attempted to prohibit, the Bible they have attempted to exclude? 

Less than five years since, within thirty miles of this city, a 
wholesale midnight murder was committed. A more horrible 
crime was never perpetrated in the State of Ohio. A feeble old 
man and three children — one a babe upon its mother's arm — were 
the victims. The mother herself was felled to the floor and left 
for dead. One only of the household escaped unharmed, and she 
a child of seven years. She was the only witness of the fact of 
the murder. Without her evidence conviction was impossible. 
When the murderer was brought to trial and that child placed on 
the stand as a witness, instantly came the objection that she was 
too young to testify. Now what is the rule of law in such a case ? 
The judge shall ascertain whether the child has acquired such a 
sense of moral accountability to a Superior Being as to feel the 
binding obligation of an oath. That is the test of competency. 
The judge came down from the bench and took his seat beside 
the child. She had never been a witness. There was a startled 
expression when she was asked if she had taken an oath, but she 
knew if she should state an untruth she would be punished, and she 
said that " God would be angry with her." " My child, where did 
you learn that ? " inquired the judge. "At school, and from my 
mother," was the answer. There were tears in many eyes in the 
crowded court-room when the oath was administered, and not one 
who heard her but believed every word of her testimony. The 
murderer was convicted and executed. 

There is now confined in the penitentiary at Columbus a man 
who, years ago, in a drunken frenzy, stamped out the life of his 



Argument of George R. Sage. 205 

Minor et al. -v. Board of Education of Cincinnati et al. 

wife. He was convicted by the testimony of a child, the only 
witness, and that child was competent as a witness by reason of the 
relio-ious instruction she had received in the common schools. An 
assassin might dispatch his victim in the presence of half a dozen 
children educated under the scheme proposed by the Cincinnati 
School Board and not one of them would be qualified to testify. 

Other illustrations will suggest themselves to your Honors. I 
have stated enough to show that there is something more at stake 
than questions of sects and creeds. Richard Lovell Edgeworth — 
induced by a noted French infidel — educated a son, from his third 
to his eighth year, according to the scheme proposed by the Cincin- 
nati School Board. He sums up the result in a single sentence: 
" He had all the virtues of a child bred in the hut of a savage, and 
all the knowledge of things which could well be acquired at an 
early age by a boy bred in civilized society." 

For forty years the Bible has been read and the elemental 
truths of religion have been taught in the common schools of Cin- 
cinnati. In those schools have been educated thousands upon 
thousands of our best citizens, of all classes of opinion and belief. 
No single instance of interference with any right of conscience in 
all that time has been shown. The reasons pleaded by the Board 
for its departure from the action and policy of all its predecessors, 
and all the arguments of counsel, are met and answered by the 
forty years' history of the schools, and the answer is complete and 
conclusive. 

We are not here to advocate the cause of religion, but of the 
State, and of the citizens. We are not here to speak for or 
against any creed or sect, but for the interests of society, the pro- 
tection and security of life, liberty and property. The religion of 
the Bible is the safeguard of all these. No free government now 
exists in the world unless where Christianity is acknowledged and 
is the religion of the country. We ask that in this great city, with 
its immense influence for good or evil, the children who are grow- 
ing up to occupy the places we must soon vacate, shall not be 
deprived of that instruction in religion by the schools which all 
admit is necessary to keep them from the ways of vice and crime, 
and make them useful and valuable members of society. 



206 Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et al. 

I leave the case with the Court. The questions with which 
we are dealing have exercised in an unwonted degree the public 
mind, as they have touched feelings and principles which every 
good citizen holds most dear and sacred. Whatever may be the 
result, I have only to say for my clients, my colleagues and myself, 
that we have placed the case before a tribunal appointed and com- 
petent to judge of the law, and to decide what are the legal and 
constitutional rights of the parties, and by the decision we expect, 
cheerfully, and as good citizens, to abide. 



Erratum. — On page 158, ninth and tenth line from the top 
of the page, for " Whatever makes men good citizens makes them 
good Christians," read, " Whatever makes men good Christians 
makes them o-ood citizens." 



Argument of Stanley Matthews. 207 

Minor et al. v. Board of Education of Cincinnati tt ah 



Argument of Stanley Matthews, 

For the Board of Education. 



May it Please your Honors — It would cost me a very painful 
physical effort to appear to-day in any case ; it has .cost me a very 
difficult and painful mental effort to appear in this. It is easy to 
swim with the tide, to go with the current, to follow in the wake of 
the multitude. To do things that are popular is not hard. But to 
stand by a man's individual moral convictions, in opposition not to 
enemies, but to friends, tries a man. If your Honors please, it 
tries me. Except, the loss of dear children, this is the most painful 
experience of my life — to be told that I am an enemy of religion, 
that I am an opponent of the Bible, that I have lost in this com- 
munity my Christian character, and that my children and my grand- 
children will reproach my memory for this day's work. For all 
that, and more, has not been whispered merely through the crowds, 
but has been told me to my face. If your Honors please, I 
would be silent to-day, if I dared, but I have no choice. 

Believing, as I do, that an appeal is being made to this Court 
to wrest the law to an illegal end, as a lover of my profession, I am 
under a professional obligation to withstand it. Believing, as I do, 
that doctrines the most dangerous and mischievous to the value and 
safety of our glorious system of public schools are being preached 
and promulgated, doctrines that are equally as dangerous and mis- 
chievous to civil order and the safety and peace of the State, as a 
citizen, I feel under still higher obligations to oppose them. Be- 
lieving, as I do, that this suit and the principles on which it is 
maintained, and can only be maintained, cause a book, that I be- 
lieve to be of no human origin — to contain the very words of God 



208 Superior Court of Cincinnati. 

Minor et al. <v. Board of Education of Cincinnati et al. 

— to be made the subject legitimately of public criticism in a court 
of justice, and only next spring to be bandied about as a foot-ball 
between political parties, and a religion which it is the greatest honor 
and pride of my life to be able to-day to stand in public and con- 
fess, to be made the watchword of contending factions in the State ; 
believing that both that book and that religion are thus discredited, 
as a lover of the one, and as a disciple of the other, my responsibility to 
God and my conscience will not allow me to do anything else than 
to speak. 

' If your Honors please, this very discussion which now for 
two or three days has been prolonged in this house, the arguments 
which have been made, the topics which have been discussed, the 
themes which have been broached — and all in my judgment en- 
tirely relevant and germane to the question — I say the very nature 
of this discussion prima- facie establishes that these gentlemen have 
no business to be in Court. Why, if your Honors please, what- 
ever the characters, individually of the three distinguished gentle- 
men whom I see before me, sitting as the administrators of the law, 
may be, though they may be deeply versed in all spiritual knowl- 
edge and profound in theology, yet your Honors do not sit there 
as doctors of divinity, but as doctors of the laws. And now, then, 
to find instead of Coke and Blackstone, and Kent, and other wri- 
ters upon the science and system and rules of jurisprudence being 
cited and quoted to your Honors as decisive of the various views 
of counsel upon the mooted questions of law, what do we have ? 
The question whether or not the Bible is a book of Divine author- 
ity ; the question whether the version of King James is a true 
translation ; the views which the Protestant evangelical denomina- 
tions hold in regard to its infallible authority as the only rule of faith 
and practice ; the opinions of the Council of Trent, and other general 
councils and pontiffs of the Roman Catholic Church, as to how far 
it contains the revealed will of God, and whence it derives its 
authority and title to be so regarded, and all these questions — ques- 
tions of exegesis, questions of interpretation, questions of church 
authority, questions of inspiration — what have they to do here, and 
who here is competent to decide them ? The very fact that this 
litigation necessarily draws in question opinions of this character, 
demonstrates, in my judgment as a lawyer, that the case has been 



Argument of Stanley Matthews. 209 

Minor et al. -v. Board of Education of Cincinnati et al. 

wrongly conceived. And this, is not all. I have already alluded 
to the ulterior results ; they are not dimly and vaguely shadowed 
forth. 

These questions, the question of supremacy in politics be- 
tween the contending churches and rival sects is the legitimate 
fruit of a controversy based on these grounds. And now I say, 
that unless all my ideas of religion are utterly perverted, unless all 
my opinions concerning politics, possible politics under our institu- 
tions, are wrong at the base, this state of things is wrong. It 
ought not to be. Legitimately it can not be. For, if the equit- 
able, benign and impartial principles we have all been taught to 
understand as lying at the foundations of our civil policy in the 
State of Ohio mean anything, they mean that there is no room in 
the controversies of political parties for differences of religious 
belief. 

Now, it is of vital importance to the proper determination 
of this case that we should come back to the question — the pre- 
vious question — that we should understand it; that we should 
understand it precisely, not vaguely ; that we should understand 
it exactly, marking its boundaries and its differences from all 
other questions, so that we may see precisely where we are, and 
what we have to decide. 

It appears, if your Honors please, that the School Board, as 
it is called, the Board of Education of the common schools of this 
city, on a certain occasion, at a regular meeting, passed two reso- 
lutions, which I will read : 

C{ Resolved, That religious instruction and the reading of relig- 
ious books, including the Holy Bible, are prohibited in the com- 
mon schools of Cincinnati, it being the true object and intent of 
this rule to allow the children of parents of all sects and opinions, 
in matters of faith and worship, to enjoy alike the benefit of the 
common school fund. 

" Resolved, That so much of the regulations on the course of 
study and textbooks in the Intermediate and District Schools (page 
213, Annual Report) as reads as follows: 'The opening exercises 
in every department shall commence by reading a portion of the 
Bible by or under the direction of the teacher, and appropriate 
singing by the pupils,' be repealed." 



210 Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et al. 

It is admitted, that prior to the passage of these resolutions, 
there never has been in the common schools of Cincinnati any 
formal instruction in religion other than that conveyed by the 
reading of the Bible and the singing connected with it at the 
opening exercises. 

Mr. King. We admit no such thing. 

Mr. Matthews. Then it "must be admitted, if that is not 
correct, that there is to be, and to continue to be, notwithstanding 
these resolutions, the same amount, the same kind, the same degree 
of religious instruction in the schools as there was before. 

Mr. King. Provided the resolution is enjoined, yes. 

Mr. Matthews. No sir, if they are enforced. For, if your 
Honors please, the only possible difference between the conduct of 
the schools under these resolutions, and under the existing resolu- 
tions prior to the passage of these, is simply in dispensing with the 
formal reading of the Bible, and singing at the opening exercises 
of the schools. It is not pointed out in the pleadings or in the 
evidence — it can not be, for it does not exist, that there ever was, 
and I repeat what I said before, any formal instruction in religion 
in the common schools of Cincinnati other than that which was 
repealed by this second resolution. If there was, what was it ? Let 
us know. 

Mr. King. It is in the evidence, judge. 

Mr. Matthews. Well, what is it ? Do you mean McGuf- 
fey's Readers ? 

Mr. King. Yes sir. [Laughter.] 

Mr. . Matthews. Well, now, is it possible ? [Renewed 
laughter.] In the first place I deny that the reading of lessons in 
McGufFey's series of Readers is formal instruction in religion. In 
the second place, I say if it is, it will continue in spite of anything 
in these resolutions. 

Mr. King. Then you give up the case, as I understand it. 

Mr. Matthews. Brother King, you will have your time. 

Is it fair, if your Honors please, is it candid, is it squarely 
meeting the issue, to say that the extracts, contained in the text 
books in the schools, introduced for the purpose of improving the 
elocution, or the spelling, or the rhetoric, or the logic, or the arith- 
metic, or the geography of the pupils, is formal instruction in religion ? 



Argument of Stanley Matthews. 211 

Minor et al. -v. Board of Education of Cincinnati et al. 

Now, why can't we meet this question like fearless and 
courageous men ? Everybody knows in reading these resolu- 
tions precisely what is meant. It has been stated that if there 
be in any of McGufFey's Readers an extract from the New or 
Old Testament, placed there as a reading exercise, although 
the motive of the author in selecting it may have been on account 
of the beauty and excellence of the sentiment which it inculcates, 
nevertheless it does not stand there to be the text of instruction in 
religion, for it does not come in the shape of a message from 
Heaven. When the Bible is read in the morning as a part of 
the opening exercises of the school, when singing accompanies it, 
that, is instruction in religion, because it is an act of worship, 
because the exercises are devotional, because the necessary impli- 
cation is that you are listening to the inspired and revealed 
will of God. But when the class takes up the Fifth Reader 
and reads the fifth chapter of Matthew — and I don't think any bet- 
ter reading could be found — it is done, if your Honors please, not 
as the words that fell from the second person in the Godhead, when 
incarnate on earth, but as a beautiful specimen of English compo- 
sition — fit to be the subject of the reading of a class — and stands, 
so far as that exercise is concerned, on the same footing precisely 
as a soliloquy from Hamlet, or the address of Macbeth to the air 
drawn dagger. 

Now, that is precisely what these resolutions mean, and it 
is a perversion of their manifest meaning when it a is charged 
that the necessary logical consequence of enforcing them is to 
eviscerate the text books in use in the schools, and every sen- 
timent implying the existence of God or our dependence upon 
Him. That is my understanding of it, that the precise effect of 
the adoption of these resolutions upon the character and the con- 
duct of the common schools in this city, is simply this and no 
more ; that, whereas, prior to their passage, the morning exercises 
in those schools embraced the reading of the Bible and appropriate 
singing; after their passage these two things are dispensed with. 
That is the length and the breadth, the heighth and the depth of 
the offense of the School Board, of which they stand here to-day 
charged. 

And, if your Honors please, in full view of the possible mis- 



212 Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et al. 

representations that may be made of what I am about to say, I 
nevertheless do say that I consider that the controversy which has, 
in the language of the gentlemen upon the other side, so excited 
the feelings of this community, is a controversy, as I understand.it, 
on the side of the complainants in this case, about a very small 
matter in comparison with the evils and the wrongs which, in my 
judgment, the continuance of the system necessarily entails upon 
those who object to it. Is there any body, who says that he 
can not conscientiously send his child to a school which is not 
opened by the teacher with a selection from the Bible and the 
singing of a hymn ? Is there any such person whose con- 
science is such that it is a violation of his sense of right, of his 
obligation to duty, that he can not send a child to a school to learn 
reading, writing, arithmetic, geometry, algebra, Latin, Greek, or any 
of the branches of ethics, humanities, sciences, arts, which may 
be or have been taught in any of the common schools of the State 
of Ohio, unless the day is first dedicated and solemnized by this or 
a similar act of worship ? I know of none. 

Again, is there any gentleman in this community who be- 
lieves that the reading of the Bible and the singing of, a hymn, 
as prescribed by the rules in force previous to the passage of this 
repeal, as it is read and as it is sung, has ever produced any appre- 
ciable good ? Does he believe that the manner in which that 
exercise is performed, the manner in which it always will be per- 
formed, under such circumstances, is a reverent and beneficial act 
of devotion ? 

Now, perhaps I am going too far. Certainly I do not mean 
to limit the power of God or of His Spirit, nor the force of 
His truth, nor the omnipresence of His grace ; but we are look- 
ing at this case, if your Honors please, humanly, and I will say 
at least deliberately this, that the little good which we may 
imagine in particular and individual and isolated cases has taken 
place is not to be weighed for an instant, with the violation of the 
conscience of a single, though the poorest and the meanest, citizen 
of the State. 

And another thing. The good that may be done in that way 
is not to be proportioned for an instant with the evil that is done 
by this schism in society, which is produced by even the appearance 



Argument of Stanley Matthews. 213 

Minor et al. -v. Board of Education of Cincinnati et a!. 

of a predominating supremacy on the part of one sect of Chris- 
tians. 

In my judgment, the contest is not about religious education 
at all. It is about denominational supremacy, the right to be 
higher, to be better, to be more powerful than your neighbor ; the 
right to say to one : " You are nothing but an unbelieving Jew," 
and to another, " You are the slave of a Roman bishop," and to 
both, " What rights of conscience that a Protestant need to respect, 
have you ?" 

I do not, indeed, doubt that the majority of those whose views 
I am opposing, are actuated by sincere motives and an hdnest desire 
to do what seems to them to be right, and believe that their course 
is necessary to preserve the honor of religion, respect for the Bible 
and the best interest of the State. It is natural enough that they 
should feel with some sensitiveness the rudeness of an unexpected 
shock to their prejudices, hardened into habits by the practice of 
many years, and that they should resist and resent what they regard 
as an attack upon religion and an insult to a book they believe to 
be divine, without inquiring whether, without regard to the motives 
of individuals or the reasons which governed them, the action of 
the School Board, considered in its legal aspects and relations, is not 
just, reasonable and right. I am, nevertheless, constrained by my 
convictions, deliberately to repeat, that it seems to me that the real 
source of the public feeling against the action of the school author- 
ities, is not so much a regard for the substance of religious educa- 
tion as solicitude for the name of Protestant supremacy. The 
sting consists in having to haul down the Protestant flag without 
thinking whether they had any business to be flaunting it in their 
neighbors' faces. 

I do not make that charge without proposing to myself the 
duty of maintaining it by proof. I find it, if your Honors please, 
in the arguments of both the gentlemen on the other side, for that 
argument reduced to its ultimate result is neither more nor less than 
simply this: That not only by the Constitution of the . State of 
Ohio, but by a law more fundamental and supreme than it, Protest- 
ant Christianity is the established religion of this State, and the 
disclaimers of the gentlemen on the other side, the opposition 
15 



214 Superior Court of Cincinnati. 

Minor et al. <v. Board of Education of Cincinnati et al. 

that they respectively express to a union between Church and State, 
is simply the gilding of the bitter pill. 

We are told that if the people of Ohio were assembled to-day 
in their sovereign majesty by their delegates, in a convention, to 
frame for themselves a new Constitution, that they could not enact 
a law which would prevent the reading of the Bible in the common 
schools, because Protestant Christianity is founded deep, below even 
the sovereign reach of the supreme power in the State. That is 
my understanding of the proposition. 

Your Honors have heard references, by both of my colleagues, 
to the article of the Rev. Dr. Bellows — a name appropriate — 
which I trust to be able to make appear to your Honors to be but 
sound and fury, signifying nothing. And yet, it is the_ argument, it 
is the proposition, it is the law of this case, as claimed by the gen- 
tlemen on the other side. The article was published with approva* 
in one of our daily city papers, and no doubt was swallowed by the 
orthodox Protestant piety of the whole communitv as an authorita- 
tive exhibition of the law of the land. 

Mr. Matthews here read the article referred to — one of consid- 
erable length, published recently in the Liberal Christian — in ivhichj 
after vigorously defending Christian education and the use of the Bible 
in the schools denouncing the attempt to expel the Bible as a Catholic 
movement, and claitning that this is a Protestant-country, the writer says : 

"We can not concede the equal rights of Catholics with Pro- 
testants to regulate our educational system anv more than we could 
allow monarchists to become senators and representatives. They 
must swear allegiance to the unmonarchial principle of the Consti- 
tution to be eligible to office. But the Catholics are denying and 
seeking- to overthrow the political supremacy of the Protestant ideas 
originally imbedded in our public law. They are contending 
against the original recognition of the Bible — on which every Presi- 
dent and every high officer swears his official oath of allegiance to 
the Constitution — to be a national book, and at the bottom of our 
system. And it is a weak and illogical hesitation to refuse to hold 
the true historic ground and to maintain the original supremacy ot 
the Protestant idea, which is now weakening and imperiling the 
national fidelity to its public school system, and the national claim 
that the Bible is the fundamental stone in the temple of American 
liberty. 



Argument of Stanley Matthews. 215 

Minor et al. ■v. Board of Education of Cincinnati et al. 

" If -the Roman Catholics are not content with perfect tolera- 
tion ; if they look for the countenance and support of the Ameri- 
can people as having an equal claim with the Protestant founders of 
our institutions to regulate its fundamental methods of public edu- 
cation, they are reckoning without their host, and will surely come 
to grief. They are arousing an opposition such as American 
slavery, in another form, aroused only after thirty years of smolder- 
ing indignation and wrath, but which finally broke out into over- 
whelming ruin for its insidious and fatal system. We warn our 
Roman Catholic fellow-citizens of what is in store for them if they 
continue to press their claim to break up our national system of 
public schools. They will sooner or later bring on a civil war, in 
which they and their churches will be swept, as by a whirlwind, 
from the land. All the liberty they can rightly ask they enjoy. 
But they ask, in another form, the liberty which Utah claims — she 
wishes to enjoy polygamy and to have the right to teach it under 
the American flag. We deny the right, and shall extinguish it in 
her ruins if she raises a finger to maintain it." 

There is not a word in this extract that was not substantially 
in Mr. Ramsey's argument. The whole of it, from beginning to 
end, as was the argument of the gentleman who has just concluded, 
was an argument to prove that the adherents of the Roman Cath- 
olic Church in this State have not an equal right with the Protestants 
in the management of the public schools, and cannot have, because 
it is unconstitutional. 

The Court at this point adjourned until the following morning. 

If your Honors please, I really don't know whether yesterday 
afternoon I said any thing offensive to my friends upon the other 
side. If I did, it was not done purposely, and I beg leave, pub- 
licly, if so, to apologize for it and to retract it. There are no gen 
tlemen at the bar or elsewhere, for whom I have a deeper or more 
sincere respect, for them personally and for their opinions, and it 
would' grieve me very much if in the heat of argument I should be 
betrayed into anything that 'might justly be considered as offensive 
to their feelings or to their opinions. I understood my friend Mr. 
Ramsey to take exception to my version of his proposition, which 
is that Christianity is the law of the land in such a sense as that it 
is more binding than the Constitution of the State of Ohio. I do 



216 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

not suppose that Mr. Ramsey has ever formally promulgated that 
proposition, or that he has recognized it consciously in his own 
mind ; yet, nevertheless, that is my version of his proposition. 
Why, if your Honors please, if I remember rightly, in the opening 
of his speech at Pike's Opera Hall, the commencement of this 
suit and of this controversy, he laid the foundation of his argu- 
ment in the dedication of the continent by its first discoverer to 
Christianity, and he might have added to the Pope of Rome. He 
and his colleagues enlarged upon the fact that all the early govern- 
ments of the colonies were based upon the recognition of the bind- 
ing obligation of the same law; that the Declaration of Independ- 
ence was also a recognition of the same fact, and that the Federal 
Constitution was itself based implicitly and necessarily upon the 
existence of the same state of things. Now, if this be so, if 
Christianity is a system of law binding on the citizens, as being 
a command from the supreme civil power that is as extensive' as our 
national institutions, lying at the base of them all, federal and 
national, then of course the conclusion follows that the people of 
Ohio, as such, have no right to repeal or abrogate it; and that, con- 
sequently, as being a part of that universal frame of government in 
which they form but a part, they can have nothing in their Consti- 
tution which denies it or is inconsistent with it. But it was not 
my purpose to insist upon any thing as deducible from that view. 
It is sufficient for the purposes of my argument to allow the gen- 
tlemen to stand upon the narrower ground, if they prefer it, that 
Christianity, as a system of law, is recognized and made valid and 
binding in the State of Ohio by the supreme civil power that exer- 
cises jurisdiction here. 

Now, in the first place, it would be very strange if this were 
so. It is not probable that it should be so a priori: on the con- 
trary the prima facie case is greatly against it. In this State, not 
to enlarge the boundaries of our view any further, though the same 
remark is true of all the States, we had supposed that we had 
founded and were living under the benign sway of republican insti- 
tutions, of a free commonwealth, of a state of society and a polit- 
ical organization growing out of it based upon the absolute impos- 
sibility of denying the fundamental truth, that in the presence of 
the law, and of all the institutions of the law, and of the law-making 



Argument of Stanley Matthews. 217 

Minor et al. v. Board of Education of Cincinnati et al. 

power, and the source of law, every citizen, without respect to 
religion, race, color, condition, or any of the accidents of human 
life, was absolutely and perfectly equal. I admit that there has 
been up to this time only an approximation to the model, to the 
ideal. We have not yet arrived at the full fruition and realization 
of that dream, but we are approaching it; we have nearly arrived 
at it. The adoption of the Fifteenth Amendment to the Federal 
Constitution will bring into the full realization of the fundamental 
law the proposition that all citizens are absolutely, in all respects, 
equal before the law, in civil rights, in religious rights, in all the 
rights that spring from the possession of human life — in every thing 
which makes a man, a man. And in a commonwealth of that kind, 
based upon that model, even supposing that it had not entirely- 
realized it, but was, nevertheless, nearly approximating to the 
realization of it, as much so at least as is marked in those funda- 
mental propositions contained in the Bill of Rights — I say it would 
be extremely improbable to find in the Constitution of such a State 
the proposition that any particular creed or form of religion, no 
matter how numerously believed in, was not only established, but 
even preferred by law. 

I desire, in this connection, to read some very vigorous 
remarks of a very celebrated man — a man who was the supporter 
of an aristocratic form of government and a religious establishment, 
but who, nevertheless, made his fame by the advocacy of free prin- 
ciples of government — Henry Brougham. In the third volume of 
his work on Political Philosophy, page 125, in the chapter devoted to 
the discussion of religious establishments, he says : 

"But there is one establishment which appears incompatible 
with the existence of a democracy, or at least compatible only 
under restrictions hardly reconcilable with its healthful growth, and 
that is a system of religious instruction endowed and patronized by 
law, with a preference given to its teachers over the teachers of all 
other forms of belief — in other words, a religious establishment." 

That is his definition of a religious establishment. " Wherever 
there is a system of religious instruction, endowed and patronized 
by law, with a preference given to it by the State over all other 
systems, and a preference given to its teachers over the teachers of 



2i 8 Superior Court of Cincinnati. 

Minor ct al. <v. Board of Education of Cincinnati et al. 

all other forms of belief." That is his definition of a religious 
establishment. 

He continues : 

"Where all the people are equal, and no privileged order is 
recognized, it seems impossible to give a preference by law to the 
teachers of one class of believers, however numerous these may be 
compared with all other classes of believers. In matters of a tem- 
poral kind men may differ widely, some approving one doctrine and 
some another. But were the State to appoint teachers of one of 
these disputed systems of science, or of morals, or of legislation, 
and give them an endowment withheld from the teachers of other 
systems, no material injury would be done to the feelings or the 
comfort of any class, and the Government would be perfectly 
justified in preferring the teachers of a system tending to support 
the peculiar policy of the State. It is otherwise with respect to 
religious instruction. The happiness of men and their most 
anxious feelings are so deeply interested in their religious tenets 
that any preference given by the State to the teachings of religious 
doctrines which they sincerely believe to be erroneous, proves 
excessively galling to them, and the same persons who could well 
bear to pay taxes which should go to the propagation of a physical 
or even of a moral theory, deemed by them to be erroneous, would 
feel seriously aggrieved in paying their contributions toward propa- 
gating a religious doctrine which they believed to be false. Not to 
mention that although a government may have some legitimate 
interest in the dissemination of moral or political opinions favora- 
ble to the policy of the Constitution, no government can have any 
but an unlawful sinister object in view by seeking the support of 
any system of religion, or forming a political alliance with its profes- 
.sors." 

Words of weight and words of wisddfn; a demonstration, if 
your Honors please, not only that the form, but that the spirit of 
republican institutions casts out and ejects as an extraneous, and 
foreign, and ruinous element in its civilization, any preference by 
law to one set of religious opinions, to one system of religious teach- 
ings over another. 

"Judge Storer. Just here there is a difficulty in my mind. I 
would be most fully in accord with you if there was an attempt to 
establish any dogmatic teaching or any sectarian doctrine ; but the 
question is here whether the introduction of the Holy Scriptures 
tends to establish sectarianism* 



Argument of Stanley Matthews. 219 

Minor ct al. -v. Board of Education of Cincinnati et al. 

Mr. Matthews. I will proceed out of the line of my argu- 
ment right here to answer your Honor. I do say that the "reading 
of the Holy Bible in the manner repealed by this resolution, is the 
teaching of a dogma in religion, held by only a portion of the reli- 
gious community, objected to by a large part of the others, and 
that it is in a just, true and sober sense — as to all who either reject 
it, in whole or in part, as a divinely inspired and infallible book, and 
as to all others, who admitting that to be its character, nevertheless 
deny that it can properly be understood without the interpreting 
aid of external authority, as to unbelievers, Jews and Roman Cath- 
olics — a merely sectarian book. Now, if your Honors please, the 
community is divided, you may say, in a general way, as a matter of 
fact, of which your Honors can take judicial notice, and to which 
your Honors' notice is addressed specially by the answer in this 
case, into at least three main divisions of positive religious belief, 
throwing out of view all those who have merely a negative posi- 
tion, sometimes called Nullifldians — believers in 'nothing, if you 
choose, except what they see, and hear, and feel. But I propose 
to confine myself now only to that division of the community as to 
their positive religious belief; and I will include under one name 
all Protestant Christians, including every variety of faith, every sect 
and denomination, from those who take a merely humanitarian 
view of the person and the work of our divine Savior up to those 
who believe that he was the incarnate God, and embracing every 
possible shade. and variation of religious belief, which, although they 
may appear small and minute, yet are so great in their estimation 
as that they are erected into matters of conscientious difference. 
So that, if your Honors please, my friend who immediately pre- 
ceded me, if I understand his religious convictions rightly, is for- 
bidden by his conscience to sit at the same communion table with 
me, because he has been immersed, as the form of baptism, and I 
have not. And another will not admit me into the membership 
of his communion or sit with me at the same table of our common 
Lord, because I will insist on singing human compositions, just as 
these Sabbath school hymns that are forbidden in these resolutions 
in the common schools. They may perhaps not deny me every 
quality of a Christian; they may possibly believe that I maybe 
ultimately saved and go to Heaven, but they reserve for themselves 



220 Superior Court of Cincinnati. 

Minor et al. <z>. Board of Education of Cincinnati et al. 

the first places at the Lord's table, and only allow me to come to 
the second. 

Here are all these varieties of belief. The gentlemen say, 
What is conscience? It may be a very small matter, in their esti- 
mation, applied to other people — a very small matter not to be 
taken notice of; and one gentleman quotes the legal maxim, " De 
minimis non curat lex" in reference to the supposed conscience of 
an infidel. 

But this will not do. We may call the eccentricities of con- 
science, vagaries, if we please ; but in matters of religious concern 
we have no right to disregard or despise them, no matter how 
trivial and absurd we may conceive them to be. In the days of the 
early Christian martyrs, the Roman Iictors and soldiers despised and 
ridiculed the fanaticism that refused the trifling conformity of a 
pinch of incense upon the altar, erected to the Csesar that arroga- 
ted to himself the title and honor of " divine," or of a heathen 
statue. History is filled with the record of bloody sacrifices which 
holy men who feared God rather than men, have not withheld, on 
account of what seemed to cruel persecutors but trifling observ- 
ances and concessions. And especially the history of the Protestant 
divisions in religion, is the record of the fearlessness with which 
men, in the exercise of the rights of conscience, have not hesi- 
tated to fill the world with their schisms, upon what to others appear 
to be the merest and most insignificant forms ; so that they have 
seemed to worship iconoclasm rather than what seemed to them to 
be forbidden images. A posture, a gesture, the sign of a cross, the 
bowing of the head, a genuflexion, the sprinkling of a few drops 
of water, a few words said over a wafer, a picture, a lighted candle, 
a vestment, whether words shall be said or sung, whether choristers 
shall be dressed in surplices, whether there shall be a black gown, or 
a white gown, or no gown at all, whether prayer shall be read or 
said, whether a psalm shall be chanted, or if read, whether by min- 
ister alone or minister and people responsively, or whether a hymn 
not composed by inspiration may be sung, whether the music shall 
be led by a precentor or accompanied by an instrument, and if an 
instrument whether it shall be viol or organ, whether a sermon 
may be read, or shall be committed to memory and spoken without 
manuscript, or preached without verbal preparation ; these and 



Argument of Stanley Matthews. iij 

Minor et al. v. Board of Education of Cincinnati et al. 

perhaps a hundred other like thing's, of no greater import, not to 
speak of the numberless variances of opinion upon matters con- 
fessedly not essential to religious conduct and character, have nev- 
ertheless been regarded by religious men as sufficient in conscience 
to justify a breach of the unity of the Church ; and it is notorious, 
that the heat of contention between sects, divided upon points of 
faith or order, has been in proportion to the narrowness of the line 
that has divided them. 

Conscience, if your Honors please, is a tender thing, and ten- 
derly to be regarded ; and in the same proportion in which a man 
treasures his own moral integrity, sets up the light of conscience 
within him as the glory of God shining in him to discover to him 
the truth, so ought he to regard the conscience of every other man, 
and apply the cardinal maxim of Christian life and practice, 
" Whatsoever ye would that men should do unto you, do ye even 
so unto them." 

Now here is the Christian community. Then there are a 
large number of the citizens of this community who are not 
Christians at all, and yet are devout religionists. They are the 
descendants of the men who crucified Christ; and yet, as old 
Sir Thomas Browne says, in the book to which your Honor 
referred the other day, we ought not to bear malice against them 
for that, for how often since have we, who profess His name, cru- 
cified Him, too ! 

Quoucque patiere, bone Jesu! • - 

Judsei te semel, ego soepius crucifixi ; 
Illi in Asia, ego in Britannica, 

Gallia, Gerrnania ; 
Bone Jesu, miserere mei, et Judasorum. 

But here they are in this community, devout worshipers of 
the only living and true God, according to their conscientious con- 
victions, and I will say, if your Honors please, in all respects capa- 
ble of performing every duty of the civil state, and equally entitled 
to, not toleration — I hate that word, there is no such thing known 
in this country as toleration — -but civil and religious equality, equal- 
ity because it is right, and a right. Then there is another sect of 



222 Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et ah 

religionists, and they are Christians. They are the Roman Catho- 
lics. 1 know the Protestant prejudices against the Roman Catho- 
lic hierachy and the Roman Catholic system of faith, and the 
Roman Catholic Church. I know, too, from a reading of that 
history, a part of which has been reproduced in argument upon this 
occasion, that the Roman Catholic Church has too well deserved 
that bitter memory at the hands of those whom it persecuted. But 
it is not to be denied that the victims of persecution, with singular 
inconsistency, have not always omitted the opportunity, when 
power was in their hands, to inflict upon their oppressors the same 
measure of persecution, as if the wrong consisted not in the prin- 
ciple, but only in the person. 

Now, if your Honors please, I try to stand impartial and neu- 
tral in this argument between these three sets of men. I am 
bound to look upon them all as citizens, all as entitled to every 
right, to every privilege that I claim for myself. And, further, if 
your Honors please, I do in my heart entertain the charity of 
believing that they are just as honest and just as sincere in their 
religious convictions as I am. I will say further, that from the 
study which I have made, as time and opportunity have been 
given me, of the doctrinal basis of the Roman Catholic faith, I 
am bound to say that it is not an ignorant superstition, but a 
scheme of well constructed logic, which he is a bold man who 
says he can easily ans,wer. Give them one proposition, concede 
to them one single premise, and the whole of their faith follows 
most legitimately and logically, and that is the fundamental doc- 
trine, the doctrine of what the church is, what it was intended to 
be, by whom it was founded, by whom it has been perpetuated, 
being the casket which contains, today, shining as brightly as 
before the ages, the ever living, actually present body of God teach- 
ing and training men for life here and life hereafter. Convince me, 
out of the lids of that book, which I recognize as absolute and 
infallible authority upon the point, that Jesus Christ, when on 
earth, founded such a visible organization for such purposes, ^and 
continues present with it by his spirit, and 1 bow before it as I do 
before my Maker, and I believe everything that it teaches, no mat- 
ter what it is. 

Now, if your Honors please, that is the doctrine of the 



Argument of Stanley Matthews. 223 

Minor ct al. i>. Board of Education of Cincinnati et al. 

Roman Catholic Church ; that is the doctrine that is believed in 
by the Roman Catholic people ; believed in sincerely, conscien- 
tiously, under their responsibilities, as they understand them, to 
answer at the bar of Almighty God, in the day of judgment, 
according to the light which they have received, in their own 
reason and their own conscience ; for you must bear in mind that 
the process by which a Roman Catholic attains his faith is the 
same by which your Honors do. We seem to make a difference, 
in that respect, as if the Roman Catholic believed in his church in 
some other way, by some other organs than those which a Protest- 
ant uses when he comes to his convictions. Why, if your Hon- 
ors please, there is no compulsion about it ; it is a voluntary matter ; 
they believe or not, as they choose; there is no external power 
which forces them to believe. They believe because they are 
taught ; they believe because they are so educated ; they believe 
because they have been trained up in it ; just as we believe in the 
Protestant form of religion, because our fathers and our grand- 
fathers and our grandfather's fathers were Protestants. They 
think they have sufficient reason for their belief; it may be an 
insufficient reason, but that don't make any difference to you and 
me ; it is their reason, and that is enough. Now, they have — at any 
rate so far as the impersonal spirit of jurisprudence is concerned, 
so far as the presiding genius of the civil law is affected with juris- 
diction ; so far as, your Honors, the embodiment of that artificial 
reason which consists in the collective wisdom of the State, can 
take any notice — civil rights and religious fights, equal to yours 
and mine. Here are these three great divisions of men and of 
opinions and of religious faith and worship, all standing before you 
to-day upon a platform of absolute and perfect equality. 

And now, then, to -answer your Honor's question. Your 
Honor said that if you could be made to believe that the reading 
of King James' translation of the Holy Scriptures was the teach- 
ings of a religious dogma, and that it was a sectarian practice, your 
Honor would pronounce in this case for the defendants. 

yudge Storer. Certainly I should. 

Mr. Matthews. Now, then, your Honor, if the Roman 
Catholic Church teaches that the reading of King James' version 
by or to its members — if the Roman Catholic father oi\ mother 



224 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

believes that the reading of any version of the Holy Bible, without 
note or comment, and especially in the hands of an unanointed 
man, is necessarily the source of pernicious spiritual evil — ah, your 
Honor shakes your head, I don't ask whether that be true, but 
whether the Catholic Church teaches it ? 

Mr. King. Then it becomes an establishment. 

Mr. Matthews. Certainly ; it is an establishment inside that 
church. 

Mr. King. No ; the whole country, you say. 

Mr. Matthews. No, I say this — the gentleman shall not 
escape — that if the Roman Catholic Church holds that dogma it 
has a legal, civil right to hold it, and the law and the State in all 
its departments and regulations, is bound to recognize the existence 
of it, as a right, to respect it as such, and in no wise to interfere 
with its exercise. To do so, is to violate a right of conscience. 

'Judge Storer. Suppose the Bible were removed from these 
schools, have not learned clergymen whom I esteem said, and has 
not the Archbishop, who is my personal friend, and a man of 
whose Christianity I have no doubt, said, that these schools never 
would be places, without the Bible, such as Catholic children 
could attend ? 

Mr. Matthews. Your Honor has asked a second question 
before I have got through with the answer to the first. I will 
come to that by and by, remarking for the present simply that the 
Archbishop is no party to this record. I ask your Honor the 
question if the Roman Catholic Church has not the civil right to 
teach, as a religious dogma, that the reading of the Scriptures is a 
heresy and a sin ? I say they have. They have just as good a 
right to do that as the Protestant denominations have to shout, in 
the language of Chillingworth, " The Bible, the Bible is the relig- 
ion of Protestants." If it be, then it is a sectarian book, accord- 
ing to the confession of their own mouths. Now, I say that is 
what the Church does teach — the Catholic Church — and I read but 
a sentence or two from an acknowledged exponent of their views, 
and a most able and candid writer. I read from the work of John 
Adam Moehler on Symbolism, in which he is arguing the question 
of the divine foundation by our Lord and Master of a visible 



Argument of Stanley Matthews. 11$ 

Minor et al. v. Board of Education of Cincinnati et al. 

organization which should contain His body and His spirit for all 
time upon the earth. He says : 

" On the other hand, the authority of the Church is the 
medium of all which in the Christian religion resteth on authority, 
and is authority; that is to say, the Christian religion itself; so 
that Christ himself is only in so far an authority as the Church is 
an authority." 

Further on, he says : 

u If the Church be not an authority representing Christ, then 
all again relapses into darkness, uncertainty, doubt, distraction, 
unbelief and superstition ; revelation becomes null and void, fails 
of its real purpose, and must henceforth be ever called in question 
and finally denied." 

The Church, the Church alone, is the depository of the truth 
of God. It is not in the Bible except so far as the Church inter- 
prets and reveals it to her children, and whoever else, with unhal- 
lowed and unsanctified hands and lips, attempts to teach any truth 
out of that book can never be certain that what he teaches is the 
truth, and is liable to teach only error. "The faith existing in the 
Church, from the beginning throughout all ages, is the infallible 
standard to determine the true sense of Scripture." * * 
" This accordingly is the doctrine of Catholics. Those will 
obtain the knowledge full and entire of the Christian religion, only 
in connection with its essential form, which is the Church." 

fudge Storer. Therefore we laymen have no right to say a 
word. 

Mr. Mattbetus. Exactly. Now that is the doctrine of the 
Church— the Catholic Church — and I maintain the proposition, if 
your Honor please, that that church has just as great and high a civil 
right to teach that doctrine and to enforce it upon its members by 
its spiritual jurisdiction as your Honor's church has to teach the 
doctrine of justification by faith ; and that that right is held by that 
church, by all its adherents, by the fathers and mothers of its chil- 
dren just as sacredly, with just as high a sense of its entire import- 
ance to the future salvation of their souls, as that some in your 
Honor's church believe it to be essential to the purity of the Chris- 



226 Superior Court of Cincinnati. 

Minor et al. "v. Board of Education of Cincinnati et al. 

tian religion that there should be two lighted candles burning on 
the altar. 

Now, if your Honors please, what will you do with the Jew, 

of whom it was said once by a Jew whose authority your Honor 

recognizes : " What advantage it is to be a Jew ? Much every 

way, but chiefly because to hirn were committed the oracles of 

' God." Your Honor has lectured in Jewish Sabbath schools. 

'Judge Storer. Certainly, and I would do it again, and in 
Catholic schools if they would let me. 

Mr. Matthews. And, therefore, your Honor recognizes not 
onlv civilly but religiously that, as far as they go, they are on the 
right road. 

Judge Storer. They have the Bible. 

Mr. Matthews. They have a part of it, if your Honor 
pleases, but the remainder of it to the Jews is sacrilege, and blas- 
phemy against God. 

Judge Storer. Not quite as far as that, because my friend, 
Dr. Lilienthal, gave me a Syriac Testament, a while ago, and said 
that was the language in which the Savior spoke. 

Mr. Matthews. Dr. Lilienthal did not live in the day (taking 
up a copy of the Bible) " when the chief priests therefore and offi- 
cers saw him, they cried out, saying Crucify him, crucify him. 
Pilate sayeth unto them, Take ye him and crucify him, for I find 
no fault in him. The Jews answered him, We have a law and by 
our law he ought to die, because he made himself the Son of 
God." 

So the record of this divine life and death and resurrection is 
something more to the Jew than an ordinary history : it is a blas- 
phemy, sacrilege. And yet, your Honor would, by law, compel 
the reading of that book, of that record of the sayings and doings 
of that life, of the manner of that death, of that resurrection, to 
the children of Jewish parents, or else forbid them to come into 
the common schools that belong to them as they do to your Honor 
and to us all, equally, or at least tax them equally for the support 
of schools, in which, by law, their religion and the religion of their 
fathers is taught to be false, and that they themselves are unbeliev- 
ers and rejecters of God. 

But it is asked by some, who by asking it betray their want of 



Argument of Stanley Matthews. 227 

Minor et al. <v. Board of Education of Cincinnati et ah 

comprehension of the real question : Have Protestants no rights ? 
Can not the majority of the community insist upon their con- 
sciences ? Must the rights of minorities alone be consulted ? Are 
we to be ruled by Catholics, or Jews, or Infidels ? 

The answer is obvious and easy. Protestants have no rights, 
as such, which do not at the same time and to the same extent, 
belong to Catholics as such, to Jews and Infidels too. Protestants 
have a civil right to enjoy their own belief, to worship in their own 
way, to read the Bible and to teach it as part of their religion, but 
they have no right in this respect to any preference from the State, 
or any of its institutions ; they have no right to insist upon Prot- 
estant practices at public expense, or in public buildings, or to turn 
public schools into seminaries for the dissemination of Protestant 
ideas. They can claim nothing on the score of conscience, which 
they can not concede equally to all others. It is not a question of 
majorities or minorities ; for if the conscience of the majority is to 
be the standard, then there is no such thing as right of conscience 
at all. It is against the predominance and power of majorities, 
that the rights of conscience are protected, and have need to be. 

If it be said that the Protestant conscience requires that the 
Bible be read by and to Protestant children, and it is a denial of 
a right of conscience to forbid it, waiving at present the obvious 
and conclusive answer that no such right of conscience can require 
that the State shall provide out of the common taxes for its gratifi- 
cation, it is enough to say, that Catholics then, too, have the same 
right to have their children taught religion according to their views 
— not out of the Douay Bible, if they do not consider that suffi- 
cient, but by catechism and in the celebration of the mass, if they 
choose to insist — that Jews have the same right to have their relig- 
ion taught in the common schools, not from the English version of 
the Old Testament, but according to the practice of their syna- 
gogues — and Infidels have the same right to have their children 
taught Deism, or Pantheism, or Positivism. And then we should 
see a state of things, such as is described in the following extract 
from the London Spectator : 

"In the colony of Victoria a grant of .£50,000 a year has 
hitherto been made ' in aid ' of religion, but it is now to be grad- 



228 .Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

ually withdrawn, decreasing ,£10,000 every year until it is extin- 
guished. The cause of the change of feeling on the subject' is not 
a little curious. The grant is to all denominations, and even the 
Jews after a severe 'fight, got some ; but thea came the Chinese 
and put in their claim, and the Australians could not stand paying 
for joss-houses.- It never seems to have occurred to them that to 
tax Chinamen to support churches was just as unfair as to tax 
Christians for the support of joss-houses. To refuse help to all 
alike -is easy statesmanship, but we do not see why it is more right- 
eous than to give it to all alike. Buddhism is not a creed clearly 
inimical to civilization." 



"Easy statesmanship" in such a case, is certainly the best and 
wisest. 

If your Honors please, I do not know how often it may be 
necessary for me to disclaim that I am not a Roman Catholic and 
that I am not a Jew. [Laughter.] I am a Calvinistic Protestant. 
I believe in the doctrines of election and predestination. I believe 
that the Saints don't fall from grace, and I hope my friends who 
have fears of me will take comfort for that. 

yudge Storer. It is a very comfortable doctrine. [Renewed 
laughter.] 

Mr. Matthews. But if your Honors please, aside from all 
badinage and jesting, which are, perhaps, not exactly appropriate 
to the place and the occasion, do let me say, for I conceive it to be 
a privilege to say it, that I believe that this book, which I hold in 
my hands, is a sacred book in the highest sense of the term. I believe 
that it is the word of the living God, as essential to our spiritual nour- 
ishment and life as the bread that we eat, and the water that we 
drink to quench our thirst is, for our bodies. . It records the history 
of the most marvelous appearance that ever occurred in human 
history — the advent in Judea of the man Christ Jesus, the prom- 
ised Messiah of old, whom Moses wrote about, and of whom 
Moses was a feeble type ; whom Joshua predicted when he led the 
hosts to take possession of the happy land and prefigured ; whom 
all the prophets foretold, and the Psalmist sung, and the people 
sighed for, throughout all the weary ages of their captivity and 
bondage ; who appeared in the light and brightness of the heathen 
civilization of the Augustan age ; who spake as never man spake ; 



Argument of Stanley Matthews. iig 

Minor et al. <v. Board of Education of Cincinnati et al. 

who healed the diseases of the people ; who opened their eyes ; 
who caused the dumb to speak, the blind to see, the deaf to hear, 
and preached the Gospel to the poor ; who was persecuted because 
he was the living representative of divine and absolute truth, and 
who was lifted up upon the cross charged with blasphemy untruly, 
but slain upon the baser charge of treason to the Roman Caesar, 
while in the very act of declaring that his " kingdom was riot of 
this world ; " lifted up, to be sure, by the hands of men, of igno- 
rant men, for whom and for whose forgiveness he prayed, " because 
they knew not what they did ; " lifted up by their hands, but in 
pursuance of a covenant that he had made in eternity with His 
Father that it should thus come to pass, because without the 
shedding of blood there was to be no remission of sin ; lifted up 
in order that he might draw all men unto himself, that whosoever 
looked upon him might be healed of the poison of original sin and 
live. " Behold the Lamb of God which taketh away the sins of 
the world ! " That, if your Honors please, is my credo. If I am 
asked how I prove it, I enter into no disputation or doubtful argu- 
ment. I simply say that his divinity shone into my heart, and 
proved itself by its self-evidence. I have not three witnesses only, 
if your Honors please, above. 1 have five — five witnesses in 
heaven to-day, that are calling to me to come to them. I would not 
give up, I would not abate a jot or a tittle of my belief in that 
book, and in the God that it reveals, and the salvation that it 
offers for all that this world can give. And yet, if your Honors 
please, in the spirit of my Divine Master, I do not want to compel 
any man. If he can not believe — oh ! it is his misfortune, not less 
than his fault, and not to be visited upon him as a penalty by any 
human judgment. It is not to be the ground of exclusion from 
civil rights ; it is not to bar him from any privilege. It is even, 
if your Honors please, to protect him from the finger of scorn 
being pointed and slowly moved at him as if he were out of the 
pale of divine charity. Oh, no ; it was to the lost that the 
Savior came, to seek them as well as to save them ; and I know 
no other way, I know no better way, to recommend the truth of 
that book to those who can not receive it, but to live like him 
whose teaching is to be just, to be good, to be kind, to be charit- 
able, to receive them all into the arms of my human sympathy, and 
16 



230 Superior Court of Cincinnati. 



Minor et al. v. Board of Education of Cincinnati et al. 



to say to them ; " Sacred as I believe that truth to be, just so sacred 
is your right to judge it." 

Now, what can the law do — the civil law — in the presence 
of eternity and of these eternal truths, and of these distinctions 
and differences, and human weaknesses and disabilities ? Can the 
law rudely step in and say, because a majority of people profess 
faith in that, that therefore you shall be daily confronted with 
what you do not and can not receive ? For — and that is the gist 
of the thing — the reading of the Holy Scriptures as the appropriate 
commencement of the morning daily exercises of the public 
school is the teaching of the religious dogma that they are the 
inspired Word of God ; and if it was not so held by the Protestant 
members of this community, there would be no such lawsuit here 
to-day as there is. If it was the writings of Epictetus, of Seneca, 
or of Pliny, or moral philosophy, or anything of human composi- 
tion and origin only, that taught the purest and the highest moral- 
ity, nobody would be found to pay the expense of filing this bill to 
compel its daily reading. It is because that exercise is intended, 
and valued only as it is intended to teach the Christian doctrine 
as to the scheme of salvation offered by Christ, and the Protestant 
doctrine, that the book without note or comment is the infallible 
rule of faith and practice. 

And therefore I say, in answer to your Honors' inquiry, that 
the practice sought to be perpetuated by the power of the civil 
arm in this suit, is a practice which teaches a religious dogma, 
and that in a sectarian sense; and I say that it is so indisputable, 
it is so self-evident — it is written upon every countenance in this 
room — that nothing else than that could account for the extraordi- 
nary interest taken in this trial and the efforts which are made to 
secure the interposition of this Court. 

Your Honor asked me another question which I said I would 
answer, and although it takes me completely out from the line of 
my argument, I will answer it now. 

'Judge Storer. It is well always to have a compass. 

Mr. Matthews. It is still better, if your Honor please, to have 
a rudder, and neither compass nor helm may do any good without 
ballast. Your Honor has said that the Archbishop of Cincinnati 
will not permit children of his communion to attend these schools, 



Argument of Stanley Matthews. 23 1 

Minor et al. -v. Board of Education of Cincinnati et al. 

if the Bible is excluded. Then your Honor's interrogatory is cut 
bono? I will answer that. I know that the teaching and the 
doctrine of the Roman Catholic Archbishop, as well as of the 
Roman Pontiff and all the Roman hierarchy upon the subject of 
the necessity of combining religious instruction with secular edu- 
cation is exactly that advocated by my friends on the other side. 
It is neither larger nor smaller, and the object of the Archbishop, 
it may very possibly be, is, by a flank movement, first to 
secularize the schools so far as the Catholic participation in the 
movement is concerned, and then to strike a bargain with the for- 
mer President of the School Board and his allies, holding them 
consistently to their present doctrine. "Now," he says, "you say 
that religious instruction must necessarily ex vi termini go hand in 
hand with grammar, and arithmetic, and geography, and conic sec- 
tions. So say I, so says Mother Church, and so says good Father 
Pius the Ninth. Now, then, what is to be done ? Why, combine 
our forces in an alliance to divide the school funds among the sev- 
eral denominations pro rata" 

And to that proposition and against it I stand here, I stand 
everywhere, always opposed, with all the strength of my body and 
my mind. And yet, while I make that declaration, I am bound in 
all fairness and in candor to the Archbishop to say this : that if his 
doctrine and that of my learned friends upon the other side who coin- 
cide with him as enunciated in this case, is the truth ; if the schools 
can not be secularized, if religious instruction must accompany sec- 
ular instruction, if it is impossible to teach the children of the State 
reading, writing, arithmetic, geography, grammar, history of the 
United States, and all the elements of a common school English 
education, without combining with it religious instruction, then I 
say the Archbishop's position is the fair one, and ought to be 
accepted. Common decency forbids the mere majority to grab the 
whole treasure of the State and turn it into its own coffers. A 
mere sense of common justice, the justice that reigns by right of 
nature, even in the heathen breast, ought at least to govern the 
Christian conscience so far as to allow others to participate in this 
partnership of wrong. And I do not hesitate to say that whenever 
it is authoritatively declared by the highest tribunals of this State, 
and sanctioned by the popular sovereignty, that common school edu- 



232 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

cation can not be given without religious instruction combined, 
then the principle of equality absolutely requires a division of the 
school fund among the religious denominations. But I will make 
the fight on the ground where I now stand. So much for the 
Archbishop and the hierarchy. 

I propose now to turn my attention for a few moments to the 
Catholic people, to the Catholic citizens of Cincinnati, to the indi- 
vidual men and women, to the voters ; and it is a great mistake, if 
your Honors please, to suppose because a man is a Catholic that, 
therefore, he don't think ; some of them don't think ; some Protes- 
tants don't think ; not thinking is not an attribute of either religion. 
Whenever we establish the doctrine in this State that the Protestant 
Bible shall not be used as a means of proselyting their children 
from their fathers' faith under the rule of the State in the people's 
colleges, by secularizing those schools, then the archbishops and 
the priests may call upon them to contribute to the support of their 
parish, schools ; but it will be like calling "spirits from the vasty 
deep." They will call in vain. No longer will priests be able to 
say to the Catholic conscientious father and mother, " Don't send 
your children to those schools, because the poison of Protestantism 
will be inhaled into their lungs in every breath that they draw." 
They can not say that. If they do, the people will say to the 
priest, " Father, you are mistaken ; our children are unmolested ; 
they are not being pointed to as other than the rest ; they are all 
on an equality ; this is a kind, equal, paternal system ; it knows no 
distinctions between religious opinions and religious sects ; it takes 
my money, and it takes the money of the rich and the poor alike, 
whether they have children or not, and puts it into a common fund 
for their common benefit ; now, having contributed my proportion- 
ate share of the public burden, I intend to enjoy for my children 
my proportionate share of the public privilege, and. I will send my 
children to the district school, and I will not contribute to your 
parish school." The day that your Honors decree the dismissal of 
this petition you write upon these walls the destruction of every 
denominational Catholic parish school in the city of Cincinnati, 
with the consent of their constituents, with their approbation and 
to their great relief. It was dangerous for the gentlemen on the 
other side to remind me of this. What is it ? It is a confession 



Argument of Stanley Matthews. 2,33 

Minor et al. -v. Board of Education of Cincinnati et al. 

that the public schools of Cincinnati, as they have been heretofore 
conducted, do not command the public confidence — not the confi- 
dence merely of priests and the Cincinnati Archbishop, but the 
confidence of the constituency, the confidence of the people, the 
confidence of the mass whose taxes are wrung from them to sup- 
port these schools. How are you going to win that confidence 
back ? In the same way that the Mother Government undertook 
to conciliate the Colonies — by fire and sword, by opposition and 
vexation, and grinding down with precedents of arbitrary law, and 
talking of the supremacy of Protestantism ? Is that the way ? 
No j but by bringing them back to a sense of our intention to do 
right, by doing justice to them. 

There, is one practical test to which this matter can be brought, 
that, if it would only be honestly applied by every one within the 
sound of my voice, I think would settle this controversy without 
another word, and that is this : Suppose this was a Catholic com- 
munity and the Protestants were in the minority, and suppose that 
the Catholics had established a system of common schools in which 
they had declared that religion, morality and knowledge being 
essential to good government, therefore the General Assembly 
should pass laws for the purpose of protecting every religious 
denomination in the enjoyment of its own mode of public worship, 
and also for the encouragement of schools and the means of edu- 
cation ; and that, therefore, they had created a large fund, taken 
partly out of my pocket and partly out of yours, and of the 
remainder of the citizens, for the establishment of a magnificent 
system of schools, and had said : " But inasmuch as our Consti- 
tution requires that religion shall be the handmaid of government, 
therefore we must incorporate religious instruction into those 
schools, and we know no religion except that which Mother Church 
teaches, and we know no hands to teach it except those whom God 
has appointed, and whom His representative and vicegerent upon 
earth has anointed with the holy oil of His approbation for that 
purpose. ■ Now, therefore, we shall declare by a constitutional 
rule, which shall be so firmly fixed in the social institutions of the 
country that nothing can change it, that every morning the exer- 
cises of the day shall be commenced by the solemn worship of 



234 Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et al. 

Almighty God in the only way in which He can acceptably be 
approached, namely — in the sacrifice of the Mass." 

Suppose your children were brought to that school and were 
taught and were made, by a rule of that school, at the name of 
Christ, to bow the head in adoration, and to cross themselves with 
the sign of the cross, how would your Honors like it ? 

Or suppose the Catholic majority should prove themselves 
extremely liberal and say — we do not propose to violate your rights 
of conscience, and if you, who are Protestants, Jews and Infidels, 
do not desire your children to be taught religious truth as we under- 
stand it, and to be present at the religious services in these public 
schools, they shall be excused from attendance, for we are willing 
to grant you perfect toleration, and more than this you can not ask, 
or if you do, we can not grant, for our consciences require this 
much, and we, too, have rights. Would not the Protestant answer 
be ready — we are not only not willing that our children shall be 
exposed to the dangerous influences of your religious practices and 
examples, but also, we are not willing to be taxed to support you 
in the education of your own children, in what we conceive to be 
religious error, destructive to their eternal interests. If you are 
willing to take the responsibility, do so, but we can not share it 
with you. Teach them what you please at home or in your church, 
but not your religion in schools that belong to us as much as to 
you. 

Now, I understand the answer to this. It is that the proposi- 
tion is not that ; it is only the reading of the Protestant Bible. If 
your Honors please, the reading of the Bible is just as offensive to 
the Catholic's conscience as participation in the sacrifice of the 
Mass is to a devout Protestant, every whit ; and they are the 
judges of their own conscience, and not you. Why, if the 
very thing that has been done for twenty-five years in refer- 
ence to the Roman Catholic population of this city had, in a 
reversed state of things, been attempted upon a like number of 
Protestants, there would have been just what Mr. Bellows invites, 
because the Protestants are a fighting people. Their religion was 
born and bapcized in blood, and they will die rather than surrender 
the right of private judgment on questions between themselves and 
God. All I ask is — being a Protestant — that we make manifest 



Argument of Stanley Matthews. 235 

Minor et al. -v. Board of Education of Cincinnati tt al. 

the value of our Protestantism to those we seek to convert, by 
showing what it can do for a man by making him magnanimous, 
and liberal, and great. Oh, what a solemn mission it is to which 
your Honors are called — to vindicate the truth of the religion you 
privately profess by showing how equal, how just it is ! 

And now, having wandered from the direct line of my argu- 
ment, for the purpose of answering some questions that your Honor 
has asked, I propose, with what strength I have left, to argue one 
or two propositions. The basis of this suit necessarily consists — 
and that is the essence of it — in the denial of the existence in the 
Board of Education of all discretion over the course of study in 
these schools. I use that phrase deliberately because it is broad. 
It is not a mere question of the reading of the Bible. It is a ques- 
tion of the particular arithmetic that may be used ; it is a question 
of the particular geography ; a question of the particular reader, 
because if religion and morality are essential to good government, 
and if Protestant Christianity is the fundamental law included in 
that word "religion," all my friends on the other side will have to 
do to obtain any further injunctions, after they have got the prece- 
dent of this, is to file a bill and allege that in a certain book intro- 
duced into the text books of the common schools with the authority 
of the Board of Education, there are some one or more articles or 
paragraphs which, in the opinion of the petitioners, are contrary to 
the Christian religion, and if they can get your Honors to agree 
with them in their interpretation of Christian doctrine on that sub- 
ject, your Honors are bound to expurgate the book. And there is 
no limit to the interference. There is no other limit than a possi- 
ble limit — and there is none — to the variety, the infinite variety, of 
opinion on questions of religion and morality ; and we might have 
the strange spectacle of one sect of Protestants seeking to get an 
injunction against one book, and another against another book, 
until every sect had its injunction, and no boy had any education. 
The object of the common schools, as I understand it, is to furnish 
education to the boys, and not injunctions to the sects. 

The reliance of the gentlemen is upon the seventh section of 
the Bill of Rights, wherein it is recited, by way of preamble, that 
"religion, morality and knowledge, being essential to good govern- 
ment,' 5 etc. That is the expression, you may say, first of the 



236 Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et al. 

framers of the Constitution, and then of the people who adopted 
it, and they put it into that clause of that section by way of pre- 
amble, introductory, however, of the commencement of a duty to 
which they think that principle leads. Now, that is a duty on the 
General Assembly. " It shall be the duty of the General Assem- 
bly " — not the duty of the School Board, not the duty of the 
Superior Court of Cincinnati — to do what ? " To pass suitable 
laws." Now, suppose the General Assembly don't do it; and 
they may refuse to do it in two ways. In the first place they 
may refuse to pass any laws at all — and that would be a violation 
of it — or, in the next place, if they passed laws, they might not, 
in the opinion of the complainants, be " suitable laws." Now, 
in case they do not pass any laws at all, what is to be done ? 
I wonder if my friends would apply for a mandamus from a court, 
directed to the General Assembly, requiring them to proceed in the 
execution of their duty, enjoined not only by the Constitution of the 
State, but by that other constitution of society, namely, the Chris- 
tian scheme of religion, to pass laws to protect every religious 
denomination in the peaceable enjoyment of its own mode of wor- 
ship, and to encourage schools. 

Suppose that the General Assembly did pass laws, who is 
the judge of their suitableness ?• It is not necessary for me to 
argue that question. There would be no sense in my arguing ii 
to a court that required an argument upon it, and I might there- 
fore as well spare the time. The General Assembly must be the 
sole and exclusive judges of the suitableness of the laws the Con- 
stitution enjoins upon them to pass. 

Now, then, they have passed laws, and they are suitable in the 
language and meaning of the Constitution, and those laws confide 
to the Board of Education in the city of Cincinnati absolute and 
unrestricted and unlimited discretion over the whole curriculum of 
school exercises and school education. The General Assembly 
have done it in pursuance to the Constitution. The fact that they 
have done it is conclusive that it was the suitable thing to do ; and 
now, after the exercise of a discretion, confided to them by the 
Constitution, they are called in question, and your Honors are 
required to revise and reverse that exercise of discretion. Where 
do you get the authority ? Not from the General Assembly, not 



Argument of Stanley Matthews. 237 

Minor et al. v. Board of Education of Cincinnati et al. 

from the Constitution. Now, it may have been wise or unwise, 
viewed from our individual standpoint, for the General Assembly to 
have intrusted any such discretion to any such body ; but that is 
nothing with which we have anything to do. And, that, if your 
Honors please, disposes of that part of the argument of my friend 
Mr. Sage in reference to Judge Hoadly and myself in connection 
with the House of Refuge and the State Industrial and Reform 
School for boys and girls. Whatever may be the law with regard 
to them, there is no pretense that in any law passed in reference to 
the conduct of the common schools, there is anything less than an 
unlimited discretion on the part of the Board of Education. Now 
will your Honors take something up out of the briefs of the gen- 
tlemen and put it into the statute ? Will your Honors pick up 
something found floating loose in the community because it happens 
to be the passing public opinion, and put it into the Constitution ? 
I was about to ask the question in a form that I fear might be con- 
sidered offensive. I was going to ask — but I will not — will your 
Honors usurp the functions of the School Board ? 

Now, I understand that it is beyond question, that in all the 
laws passed on the subject of schools by the General Assembly, 
there is nothing that requires any religious instruction whatever — 
the reading of the Bible, the singing of hymns, or the use of any 
book of religion. If the General Assembly has not enjoined it, if 
the General Assembly has not required it, if it has submitted the 
entire discretion over every question to the School Board, who, 
in the discharge of the duties of a good citizenship, shall dare 
say nay ? Now, is not that true, and is it not conclusive ? 
Why, let us look at it — admitting now everything else that has 
been said — that religion, in the language of the Constitution, 
means the Christianity of the Bible, and that instruction in it 
is essential to good government ; yet, nevertheless, if the General 
Assembly have become derelict in their duty, and have not passed 
suitable laws making a perfect system of education, can you sup- 
plement their folly with your Honors' wisdom or the wisdom of the 
gentlemen? 

Now, lex ita scripta est — " what is writ is writ ;" and there 
it is, and it is the command of the lawful superior to your 
Honors, and to me, and to these gentlemen. The School Board 



238 Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et at. 

are the legal and intrusted guardians of the school interests, and 
whatever they choose to do, or whatever they choose to omit 
in reference to the manner of conducting the exercises of the 
school, the subjects of instruction, the extent to which that instruc- 
tion shall be carried, the manner in which it shall be imparted and 
the persons by whom it shall be given, the times, places — every 
circumstance of that character is absolutely at their disposal. And 
if it is not done to the satisfaction of the community, all the com- 
munity have to do is to blame themselves, for they are the people 
who appointed these Trustees. All they have to do is to vacate 
their places when the legal expiration of their term arrives, and 
select new and better men. There is the remedy — a plain one — 
better, more satisfying, every way, than an injunction. 

Take my friend Mr. Ramsey's definition of education, quoted 
from Horace Mann. I agree to it. What does it define a com- 
plete and perfect education to be? Why, first the development of 
the life and vigor of the physical frame into the full proportions of 
manhood and womanhood ; next, the development and strengthen- 
ing and invigorating of the intellectual faculties ; next, last, and not 
least, the improvement and culture of all the moral sentiments and 
affections. 

Now the School Board omits a gymnasium, gymnastic exercises, 
calisthenics, dumb-bells, these performances by girls and boys for 
the purpose of developing their muscular power, of enabling them 
to strike the right attitude, to maintain the proper and graceful 
gait — and that, bye-the-bye, is a part of religion in the estimation 
of some, for I have been told by a clergyman of the High Church 
that he knows a Presbyterian woman when she walks up the 
aisle, for she always walks upon her heels, whereas your High 
Church ladies have been taught to trip the light fantastic toe. 
[Laughter..] 

Suppose the School Board, being composed of a body of dried 
up and withered old fellows that have always been intent on black 
letter, or in poring over works of alchemy and distorting mind and 
body, as is charged against my friend, Judge Stallo, in recondite 
research after the truths of nature, have acquired a bad opinion of 
anything like muscular Christianity, and do not care about the 



Argument of Stanley Matthews. i^g 

Minor et al. v. Board of Education of Cincinnati ct al. 

body, holding that it is the soul that is to be expanded into the 
ethereal — that the body is nothing — that it is dust, and shall return 
to dust — and, therefore, they will not have any calisthenics, will 
not allow the girls to grow and expand and become vigorous, nor 
allow the boys to play base ball ; and, perhaps, a little restraint in 
that might do the rising generation some good. 

Now, then, Mr. Ramsey comes in, or rather the president of 
the "Red Stockings," who is a member of the bar, and gets out an 
injunction against the School Board, on the ground that this course 
they are pursuing will dwarf the bodies of the children — " mens sana 
in corpore sano" being the foundation, without which education, 
either moral or intellectual, is of no value. I do not know of any 
authority on the point that a bad state of health is advantageous to 
knowledge or light of any kind, except as contained in a couplet, I 
think, of Shenstone — 

"The soul's dark cottage, battered and decayed, 
Lets in new light through chinks that Time has made." 

But ordinarily, so far as youth is concerned, physical education is 
just as necessary to good citizenship as intellectual and religious — 
as that religious education that the counsel on the other side say 
is limited by the necessities of the State. Now, then, the School 
Board passes a resolution not permitting the youths to have 
gymnastics, or to "skin the cat" [laughter], or to practice any 
of the exercises proper for that age ; why not apply for an injunc- 
tion ? 

fudge Storer. The boys would take that liberty at any rate. 

Mr, Matthews. But they might get whipped for it. My illus- 
tration, however, was to enforce the idea that in this matter the 
Legislature of the State and the Constitution of the State have 
remitted the entire discretion and control of this whole subject to 
the School Board, and I shall not take the time of your Honors to 
cite an authority to show that the lawful exercise of a legal discre- 
tion can not be controlled by a court of law, however unwisely it 
may have been exercised. But then, it is said, there is something 
behind the Constitution — that there is a necessary implication in 
the use of the word "religion" in the Bill of Rights, that the 
reading of the Bible is indispensable in the schools. 



240 Superior Court of Cincinnati. 

Minor et ah v. Board of Education of Cincinnati et al. 

Now, I dispute that proposition. I dispute the proposition 
that the word "-religion," in the Constitution, means even the 
Christian religion.- I am very far from thinking it means the 
Protestant religion. I think, to go no farther, it is evident it 
does not mean any form of religion that may be professed by 
one and dissented from by another, because the very same 
section of the Bill of Rights is full of declarations of absolute 
neutrality on the part of the State, and therefore when it uses the 
word religion it does not use it even in the sense understood by 
Mr. Sage, when he calls it a " broad Christianity " — a Christianity 
which I confess I do not understand. But the word as employed 
in the Constitution simply means those indestructible principles of 
right that are written by the finger of God, even on the fallen 
nature of" man, and revealed to him by the light of his conscience, 
and of which, so far as its moral precepts are concerned, the Bible 
is only the republication. For if that book inculcated a single 
moral precept to which there was not an answering voice in human 
nature, it would be just like speaking in an unknown tongue. The 
Decalogue is older than Moses. It is as old as man, and was trans- 
ferred unto him by God, in whose image he was made, and, how- 
ever perverted and ruined by transgression, either inherited or 
committed, that transcript of God's image remains there indelible, 
indestructible. It makes man a moral being, and without it society 
would be impossible, government impossible and schools worse than 
a farce. Now, then, when the Constitution of the State of Ohio 
says religion and morality and knowledge are essential to govern- 
ment, it simply means that the instinctive sense of right and wrong 
should be brought out by exercise and developed. The only reli- 
gion that it considers vital to the preservation of the State is that 
religion which is written on human nature. I do not deny that the 
State has to do with religion. It has a good deal to do with it. It 
has the right, and it is its duty to recognize the fact that man is a 
mbral being, and therefore recognizes himself as under a responsi- 
bility to do right ; and that is the very foundation of society, and 
it is the foundation of government, because government, being the 
aggregation by voluntary consent of the heads of families, is insti- 
tuted by man for the purpose of doing justice — that is, of seeing 
that justice is done, of exercising its compulsory power, so as to 



Argument of Stanley Matthews. • 241 

Minor et al. -v. Board of Education of Cincinnati et al. 

compel the performance by man of the duties required in society, 
to render, in the language of civil law, every man his own — suum 
cuique tribuere. The origin of society is the family, and the man is 
the head of the family and its natural representative, and that is 
the way we get rid of female suffrage. 

" This is a very good world that we live in, 
To lend and to spend, and to give in, 
But to beg and to borrow, and to get a man's own, 
It is the worst world that ever was known. " 



And to improve it in that latter particular, governments were 
instituted, and justice can not be known except as it is developed 
from the intuitive instincts of men, especially that which teaches 
the distinction between right and wrong. 

And, if your Honors please, whatever does belong to a man, that 
he has by virtue of being a man in society, and not under govern- 
ment. He had it before government was. It was his. That is 
the meaning of it. He does not hold it by any sub-infeudation ; 
he holds it by direct homage and allegiance to the owner and the 
Lord of all. Moreover, whatever was his, just that same belonged 
to everybody else. On the natural plane, at least, God has not any 
favorites. Whatever in point of right He gave to you, He gave to 
me ; and inasmuch as you and I might dispute, we agreed upon a 
common arbiter, and that is government that settles the boundary 
between your right and mine. It makes no difference how small a 
right it is. If it is only a little piece of a right, our law says an 
action for damages shall lie for its breach, because the law presumes 
damage from the denial even of that right. If it is only so small 
a matter as the conscience of a Jew or an Infidel, it is his, and can 
not be taken away. 

My friends on the other side said they were asking light on 
this question, as to what, and how absolute and universal are the 
rights of conscience. I hold in my hand a book written by Isaac 
Taylor, one of the most thorough masters of English style. 

"Judge Storer. And one of the most learned. 

Mr. Matthews. And I will add one of the most devout Chris- 
tians, and a Presbyterian. It is an Essay on Ultimate Civilization. 



242 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

He undertakes to shadow forth what shall be the condition of 
society when all the social functions are brought to their highest 
altitude and perfection, and that social equilibrium is attained which 
opens the way for the indefinite and unobstructed progress of the 
individual man ; and in laying down the propositions that are funda- 
mental to that ultimate, best, highest civilization, he says: 

" The rights of man, as man, must be understood in a sense that 
can admit of no single exception ; for to allege an exception is the 
same thing as to deny the principle. We reject, therefore, with 
scorn, any profession of respect to the principle which, in fact, 
comes to us clogged and contradicted by a petition for an ex- 
ception. " 

He says again : 

" The rights of man must everywhere all the world over 
be recognized and respected, and religiously watched over and 
courageously defended ; and that to do this is the audible call of 
God now addressed to the British people." 



H 



e says again 



" We have just now said, in relation to the rights of man, that 
they are universal and wiexceptive ; or, if not so, then they are none 
at all. To profess the principle and then to plead for an exception 
— let the p!ea be what it may — is to deny the principle and it is to 
utter a treason against humanity. • The same is true, and it is 
true with an emphasis, in relation to those rights which are at once 
the surest guarantee of every other, and the most precious of all — 
namely, the Rights of Conscience. We say Rights; for although 
they are one, they yet include what must be carefully specified in 
detail, as a caution against all contradictions and against any 
infringement. 

"Besides : — Liberty is no liberty, in any sense if at all it be 
bandaged. These restraints, which attach to social life for the 
safety of all alike are none in the feeling of the right-minded. But 
the bandaging of men in respect of their religious convictions and 
professions and conduct is a restraint which is useless more than 
any other ; for danger on this ground does not come, if it be not 
created ; and it is prejudicial more than any other ; because relig- 
ious liberty, in its amplitude and when it is enjoyed by many, does 
by itself, render despotisms impossible. 

"The Rights of Conscience not understood, or if they be mis- 
understood by a government — then the civilization of such a people 
is — a glittering barbarism ; it is nothing better." 



Argument of Stanley Matthews. 1^2 

Minor et al. -v. Board of Education of Cincinnati et al. 

And he shows that this sacred protection of the rights of 
conscience, although it encourages and develops differences of 
religious opinion, does by that very act, multiply and invigorate the 
forces that supply energy to social progress. He says : 

" Everybody among ourselves has at length come to under- 
stand, or at least passively to assent to, this simple and most 
momentous truth — that religious differences, when inflamed by 
intolerance, become active causes of social confusion — tending 
toward national disintegration ; this has been signally exemplified in 
the past history of Spain and of France. It is a truth not so gener- 
ally understood among ourselves — or it is not so cordially admitted 
— that the absolutely unrestricted development and the fixed conser- 
vation of religious differences, is a principal and indeed an indispen- 
sable condition of social advancement and of the progress of a 
people toward a state of equipoise without stagnation. Religious 
differences well defined, firmly maintained and fully developed, and 
in such a condition that they are not merely elements, but are ener- 
gies within the social mass, when duly attempered, stand, if not 
foremost, quite prominent among the forces that are carrying us for- 
ward toward a higher civilization. " 

Most noble and tolerant political philosophy ! and exactly 
expresses and justifies that wise secularism of our constitutions of 
government, which but serves the cause of religion, by preserving 
its spirit and its freedom, in all its forms and growths, by absolute 
neutrality. 

And applying these principles to the subject of popular educa- 
tion, the same writer says : 

" Something should be said concerning popular education, and 
to all men of ordinary intelligence and unsectarian feeling, the 
obstructions thrown in the way of popular education are causes at 
once of great irritation, amazement and humiliation also. How is 
it that many estimable men, benevolent, but narrow in understand- 
ing and rigid in temper, would rather see millions die in starvation 
than help to distribute loaves not baked in their oven and not 
crossed with their mark. " 

Yet that observation and protest are made in the face of a sys- 
tem of education in England just as tender of the rights of con- 
science as the conscience clause my friends rely on in this case. A 



244 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

conscience clause — that is what it is called there ; properly there 
because they have a legally established religion ; properly so there, 
because there it is toleration, and not equality ; properly there, 
because although they claim to be a free government, and to have 
abolished all the remnants of barbaric persecution, yet, after all, it 
is only toleration. They permit it. It is indulgence on the part 
of the State. And yet they have there a conscience clause. Here 
we have a conscience clause with which, we are told, we ought to 
be satisfied. We ought to be, if Protestantism is established as a 
law of the State, because we can get nothing else. But if. we are 
all on an equality, there can be no conscience clause, for that 
implies an exception — it must be a rule universal in its application, 
providing equally for all. It does not merely permit it — it does not 
merely consent that a child may come by permission of the parent 
and be excused by way of exception from the operation of a general 
rule. No ; it says every child shall have just the same right there 
as every other. There shall be no conscience clause but that, 
because there can be no question of conscience — that is legally. 

Now, I ask attention to the educational system in England, 
as existing at the time of that indignant protest of Isaac Taylor. 
I read from a new and able book on the Parliamentary Government 
of England, by Alpheus Todd (vol. 2, p. 646.) He says : 

" Another educational question, which has given rise to much 
controversy, has grown out of what is termed the conscience clause. 
This is a regulation (not yet embodied in any formal minute) which 
was first framed by the Educational Office about the year i860, 
and which has since been made generally, though not invariably, 
applicable to grants on behalf of schools. It is as follows : ' The 
managers of the school shall be bound to make such orders as 
shall provide for admitting to the benefits of the school the children 
of parents not in communion with the Church of England, as by 
law established, but such orders shall be confined to the exemption 
of such children, if their parents desire it, from attendance at pub- 
lic worship, and from instruction in the doctrines and formularies of 
the said church, and shall not otherwise interfere with the religious 
teaching of the scholars.' 

" The practical effect of this clause is to allow parents who 
do not wish their children to be taught any particular doctrine, to 
withdraw them from the schools at the time religious instruction is 
given. At first this clause was strenuously opposed by the clergy 



Argument of Stanley Matthews. 245 

Minor et al. v. Board of Education of Cincinnati et al. 

. ^ _____ 

of the Established Church, who deprecated the withdrawal of any 
children from their own oversight and pastoral care, and who feared 
that even this concession to Dissenters would tend to destroy the 
denominational character of the schools, and lead to all religious 
teaching therein being done away with." 

Just the same provision as these gentlemen are seeking to im- 
pose on these public schools. They include everything which they 
call a " broad Christianity ;" everything, I suppose, from Bellows 
up [laughter] ; but if any children whose parents desire that they 
may be excused from attending the service prescribed by law as 
only preparatory to the opening of school every day, they can 
retire. 

Your Honors are aware that all the liberal minded men in 
England have banded together under a party name called " Volun- 
taryism," both in regard to religion and education, one of the great 
exponents of their principles, Dr. Ralph Wardlaw, declaring that 
the province of the State in matters of religion was that it has no 
province at all. 

Now, that is the English system, which gives, in deference to 
the rights of conscience, the right on the part of children of Dis- 
senters to withdraw from the schools at those times. 

But even that is considered offensive and justly so. And to 
remedy the inequality, the Duke of Marlborough, Lord President 
of the Council in Mr. D'Israeli's administration, last year, intro- 
duced into the House of Lords, the project of a law, of which the 
chief features were dispensing with the condition requiring all 
schools aided by the State to be in connection with some religious 
denomination, and that payments should be made for results ob- 
tained in regard to secular teaching alone, providing, nevertheless, 
that denominational schools might continue to receive State aid, 
provided, that when required by the circumstances of the particular 
case "conscience clauses" for the protection of the rights of chil- 
dren of other denominations attending the school, should be duly 
inserted in their trust deeds. And to avoid misapprehension it was 
proposed to insert in the schedules of this bill, the management 
clauses of the Church of England, the Wesleyan, the Congrega- 
tional, the Roman Catholic, the Jewish, and other denomina- 
tional schools, as used by these religious bodies ; but if a purely 
17 



246 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

secular school presents its scholars for examination, the State would 
not refuse to examine and pay for the results of their teaching. 

But upon the argument made by counsel for the plaintiffs in 
this case, if I understand it, and if carried to its logical results, we 
can not constitutionally afford to be so liberal, even as is proposed 
in England where they have an Established Church. For if reli- 
gion be here, under our Constitution the care of the State, to a cer- 
tain extent as claimed, and that religion means the religion of the 
Bible — a broad Christianity — so that the State is bound by its fun- 
damental law to provide education in that religion as a necessary 
part of the instruction to be given in the public schools, then it 
can not permit exceptions to be made, even upon the plea of con- 
science — for the exception destroys in this case, not proves the 
rule — and the State may, yea, if the argument be sound, must by 
the terms of its Constitution, step in between father and child, and 
educate the child in opposition to its father's faith. And to justify 
this interference, we are told that parents neglect their duty, and 
that a child has rights of conscience as against its father ! 

I protest against the doctrine. Its application would be a 
monstrous tyranny. Its idea is Pagan, not Christian. 

It was upon just such a pretense that the Pope of Rome stole 
a Jewish child from its parents, on the plea that it was the right of 
the child and for the good of his soul ; that it was the duty of a 
Christian State to provide for all the children of its peoole a Chris- 
tian education.* 

* Since the close of the argument in this case, I have received from 
an anonymous but evidently intelligent, and I think sincere correspondent, 
a letter criticising this view of the Mortara case. As an illustration of 
my argument, and for the sake of the explanation, I make the following 
extract : 

" I was very much pained, however, when I heard escaping from your 
lips one grievous mistatement, which was no doubt owing to the excite- 
ment of the moment, and not considering of the merits of the case. I 
mean the reference you made to the Mortara Case which you charac- 
terized as the Pope having stolen a Jewish child. Bear with me whilst I 
give you an unbiased statement of the case. 

" There is a law in the Roman States forbidding Jewish families keep- 



Argument of Stanley Matthews. 247 

Minor et al. v. Board of Education of Cincinnati et al. 

In opposition to this doctrine, listen to some noble, true, and 
eloquent utterances, from the gifted Father Hyacinthe, entitled by 
his present anomalous position, to be regarded, if not as authority, 
at least, with respect, both by Protestant and Catholic, and to the 
sympathy of the liberal minded of every creed. In a discourse on 
civil society and^ Christianity, a translation of which has recently 
been published, I find the following : 

" One of the acutest and exactest thinkers of our day, whom 
I desire to mention by name, on account of the obligation I am 
under to him, in my own studies, the illustrious Abbe Rosmini- 
Sorbati — a genuine Italian to the very marrow of his bones, and at 
the same time a very Catholic to the core of his heart — has helped 
me to the best conception of civil society. According to him 
civil society has for its object not — like the family in its natural 
order, or the church in its supernatural order— the substance of 
rights, but simply the modality of rights. It does not create rights. 
Man exists before the State, with all those essential and inalienable 
rights which he holds directly from God, by virtue of reason and 
moral liberty. The family, also, exists before the State with rights 
equally essential, equally inalienable, exercised in its bosom by the 
human person raised to his fullest dignity and felicity. It is not for 
the State to create these rights which are antecedent to it, and 



ing Christian servants. The chief rationale of this law is to protect the 
Jewish household and to prevent the arising of conflicts between them 
and the authorities. The Mortara family held a Christian servant con- 
trary to law, and made itself thereby liable to its penalties. It happened, 
that one of their children, the boy in question, fell dangerously ill and his 
life was despaired of. The servant, firmly believing that baptism is neces- 
sary to salvation, and thinking the infant dying,, felt bound in conscience 
to give the needed assistance for its eternal welfare, and administered pri- 
vate baptism, thereby making the child a Christian. The boy unexpect- 
edly recovered. The servant for some years concealed her action, but finally 
feeling uneasy about it, made the fact known to the authorities, and the 
Government, being Christian, not of a broad Christianity, which you 
have well said is a broad humbug, felt in duty bound to provide for that 
child a Christian education, to which it had acquired a strict right by the 
fact of its baptism. This it would manifestly not have received in the 
bosom of its family, and hence it was removed to a public institution, 
where the parents were free to visit it, and where it was educated at the 



248 Superior Court of Cincinnati. 

Minor et al. <v. Board of Education of Cincinnati et al. 

which come, I am bold to say, from a higher source ; it is only for 
the State not to destroy them, nor to encroach upon them. Its 
mission extends no farther than to protect them and to establish 
over them the sway of what the English in their noble language 
call the ' Queen's peace ' what Saint Paul bids us ask for when we 
pray for kings and all that are in authority, ' that we may lead a 
quiet and peaceable life in all godliness and honesty.' The mission 
of the State consists then, in fixing the modality of rights, that is, 
in regulating the best way in which the reciprocal duties of indi- 
viduals and families should be exercised in order to help, rather than 
hinder each other in their common development. It consists fur- 
ther, in protecting by force the right and interests which belong to 
it, from every unjust and violent attack, whether from within or from 
without. Such are the natural frontiers of civil society and domes- 
tic society — the family and the State — frontiers far more impor- 
tant for the peace and liberty of the world than those of the Pyra- 
nees, the Alps, or the Rhine ! On these frontiers I pause, and 
salute that scepter which requires nothing but righteousness, pro- 
duces nothing but peace ; the oppressor of none, the liberator of 
all. I salute the sword of which Saint Peter declares that the 
king bears it not in vain. Next to righteousness I know nothing 
more sacred than force, when force is not the assassin of right, but 
its champion." 



expense of the State. We all know what a fearful storm of hatred and 
angry passions was at that time raised against Rome for this action, and 
how, by false representation, the intervention of various European gov- 
ernments was obtained to remonstrate in the name of Christianity against 
the Christian education of a Christian child; but Rome stood firm to its 
recognized duty and protected through good and evil report, the divine 
right of that child to a Christian education, acquired by the fact of its 
baptism. 

" Considering all this, ought we not rather admire the courage and for- 
titude of Rome in thus shielding the rights of this child, even in the face 
of all the clamor and invectives of a misguided public opinion, and does 
it not sound harsh to hear such an action styled by an honored and learned 
lawyer, in the sacred precincts of a court of justice, "the Pope stole a 
child?" Why, dear Judge, if the Pope has a penchant for the child steal- 
ing business, I suppose he might gratify it almost daily, in the Ghetto, 
without much ado being made about it." 



Argument of Stanley Matthews. 249 

Minor et al. -v. Board of Education of Cincinnati et al. 

And again : 

" The child belongs to its parents. I know the prejudices of 
my contemporaries, but I affirm none the less, in some measure, 
a right of property of man in man ; and there can be no example of 
this sort of right more legitimate and noble than that of the right of 
the father to the child. Doubtless the person of every human being 
is essentially free and sovereign; it belongs to itself under the c emi- 
nent domain ' of God. But it is not so with its nature. Saving 
and excepting the rights of the person, we may say — we must say 
— that the nature of the son belongs to the father. It is flesh of 
his flesh and bone of his bone. The breath which inspires it is 
breathed from his nostrils ; the vital heat which animates it is kin- 
dled from himself; and, as they were wont to say in Israel, it is 
his spark, his lamp which is to go shining on when he is dead, and 
perpetuate his name and glory in the midst of his people. The 
father is then, indeed, the proprietor of this sacred nature ; to him 
alone it belongs to impress upon it its controlling momentum and 
direction toward the future. Consequently the school, the sanctuary 
of education, has its proper place beneath or near the parental 
roof. 

"The public interest, that pagan idea so often appealed to 
against the rights of the individual and the family, could not give 
to the State a power over education which it does not possess itself. 
In Sparta, the Republic claimed the right of educating the chil- 
dren, because it regarded them as its property ; and this principle 
was, in a greater or less degree, that of all Greek and Roman 
antiquity. 

" The grand principle of Lycurgus, repeated in express terms 
by Aristotle, was, that as the children belonged to the State, they 
should be educated by the State, according to the views of the 
State." 

The contrary doctrine — that it belongs primarily to the State, 
and not to the family, to provide for the education of children — 
and especially that fatal and needless extension of the principle, so 
as to embrace their religious instruction, is fruitful of the worst and , 
most unhappy results, and can not fail, if carried in application to 
its final consequences, to subvert society itself, for it attacks it in 
its most vital point — the sanctity of the family relation. 

May it please your Honors, the example of European systems 
of popular education has been cited as proof of the ' universal 



250 Superior Court of Cincinnati. 

Minor et al. <v. Board of Education of Cincinnati et ah 

opinion of the necessity of coupling religious with secular instruc- 
tion. The fact that in every country of Europe where education 
is made the care of the State, there is also a legally established 
State religion and church is sufficient to show the source of the 
opinion, and to turn the example into a warning. Certainly such 
precedent can have no authority here. All our traditional policy, 
all our republican principles, all our democratic ideas, all our 
notions of civil and religious liberty, all our political theories, all 
our social philosophy, habits and manners are entirely opposed to 
it. And yet were it otherwise, there is no European system 
of popular education that can be adduced as a justification of what 
is claimed by the plaintiffs in this case. If in Europe they do not 
completely secularize popular instruction, at least they treat every 
religious opinion and sect equally and fairly. There is not a king- 
dom or an empire in Europe to-day, despotic as it may be, and in 
which religion is established by law through a State Church, where 
king or emperor dares to trespass upon the rights of conscience 
of either Protestant, Catholic or Jew. The National Council of 
Education in France contains, as representatives, Catholic priests, 
Protestant ministers and Jewish rabbis. 

Matthew Arnold, in his official report upon Continental 
Schools to the British Government, pp. 87—88, says : 

" I have several times mentioned the aumoniers, or chaplains, 
attached to the French public schools. None of these schools, 
secondary or primary, are secular schools j in all of them religious 
instruction is given. It is given, too, in the vast majority of pri- 
vate schools. An hour's lesson in the week, certain exercises and 
prizes in connection with this lesson, and service on Sundays, are 
what this instruction amounts to in the secondary schools. The 
provisor and the chaplain regulate it between them ; that of Cath- 
olic boys is under the inspection of the bishop of the diocese, or 
his delegate, in concert with the provisor. Protestant and Jewish 
boys receive the religious instruction of their own communion, regu- 
lated, mutatis mutandis, precisely like that of Catholic boys. The 
great lyc'ees of Paris have Protestant and Jewish chaplains attached to 
them, just as they have Catholic chaplains. Where Protestants 
or Jews are not numerous enough for the school to have a special 
chaplain for them, boys of these persuasions still receive their 
religious instruction, from ministers of their own creed appointed 
to visit them, and are entirely exempted from the religious instruc- 



Argument of Stanley Matthews. 251 

Minor et ah -v. Board of Education of Cincinnati et al. 

tion of the Catholics. I can not myself see that the religious 
lessons (I do not, of course, speak of the services and ordinances 
of religion) come to very much in secondary instruction, though I 
must think, differing in this respect from many liberals, that they 
have an important and indispensable part in primary. But it is 
indisputable that they give rise, neither in France nor Germany, to 
any religious difficulty, as we say, whatever. They are regulated 
with absolute fairness, and there are no complaints at all of improper 
interference and proselytism. This, I say, is indisputable; and 
Protestants and Jews would testify to it as much as Catholics." 

In respect to Prussia, the same writer says : 

." In Protestant schools, the religious instructor is usually a 
layman ; in Catholic, an ecclesiastic. The public schools are open 
to scholars of all creeds ; in general, one of the two confessions, 
Evangelical or Catholic, greatly preponderates, and the Catholics, 
in especial, prefer schools of their own confession. But the State 
holds the balance quite fairly between them. Where the scholars 
of that confession which is not the established confession of the 
school are in considerable numbers, a special religious instructor is 
paid out of the school funds to come and give this religious 
instruction at the school. Thus, in the gymnasium at Bonn, 
which is Catholic, I heard a lesson on the Epistle to the Galatians 
(in the Greek) given to the Protestant boys of one of the higher 
forms, by a young Protestant minister of the town, engaged bv the 
gymnasium for that purpose. When the scholars whose confession 
is in the minority are very few in number, their parents have to 
provide by private arrangements of their own for their children's 
religious instruction." 



And in reference to the schools in Switzerland, Mr. Arnold 
says, p. 241: 

"In Canton Geneva, the lay tendencies of modern democracy 
have so far prevailed that the pastor, or the cure, is not ex officio 
a member of the communal school committee ; but all the com- 
munal schools have a dogmatic religious instruction, Catholic or 
Protestant. Many people in England seem to have a notion that a 
State system of education must of necessity be undenominational 
and secular. So far- is this from being the case that in all the 
countries to which the present work relates — France, Italy, Ger- 
many and Switzerland — there is a State system of education, and 



i^i Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et al. 

that system is both denominational and religious. Only the differ- 
ent denominations are not suffered to persecute one another." 

The last sentence contains a sting that ought to bring blood 
to the cheeks of every one who, professing to believe it to be the 
dutv of the State to include religious instruction in its system of 
public education, at the same time insists that that religious instruc- 
tion shall be such that none but a Protestant can approve it, 
which excludes the Catholic and insults the Jew. 

Now, if your Honors please, I characterized this proceeding, 
in the beginning, as an attempt to wrest and pervert the law, and I 
claim I have a professional interest to resist that attempt ; and it 
consists not only in the solicitation held out by the other side to a 
usurpation by a court of law of duties imposed upon another 
Board, but in maintaining another proposition, and it is that in any 
just sense of the term applicable to the issue in this case, Chris- 
tianity is a part of the law of the land. I ask your Honors' 
attention, in the first place, to the Bill of Rights, as 1 have already 
adverted to the provisions of the Constitution in reference to 
schools. In one thing I agree with the gentlemen on the other 
side — that that Bill of Rights is not a mere series of glittering gen- 
eralities. 

Your Honors, at one time, seemed to grow impatient in 
listening to my colleagues reciting the various acts of oppression 
and persecution inflicted by the Pagans on Christians, by Catholics 
on Protestants, by Protestants on fellow Protestants and Catholics, 
as if that recital of historical facts was not germane and relevant to 
this case. I think it was very much so, because it is in that recital, 
it is in those records of history, that are written the rise, the pro- 
gress, the devolopment, the establishment of the principles con- 
tained in this Bill of Rights. Every martyr to civil oppression and 
religious persecution is a witness to the truth of these propositions. 
They are the landmarks which establish the boundaries of our 
present knowledge of political science. They are the records on 
which the people of Ohio have inscribed the advance made from 
generation to generation in the study and the practical application 
of political elementary truth, and every departure from them should 
be carefully watched, and most sedulously prevented. And yet, in 



Argument of Stanley Matthews. 253 

Minor ct al. -v. Board of Education of Cincinnati et al. 

spite of history, we are told by gentlemen, as I understand them, 
that it is a legal proposition; that the Protestant view of religion, 
as founded on this version of the Bible, is a part of the law of the 
State ; and not only of this State, but of the United States, for, in 
maintaining the proposition they have to overrule two deliberate 
decisions of the Supreme Court of this State, and they seem to 
think they have successfully accomplished by it, by a decision of 
the Supreme Court of the United States. 

Now I maintain, if your Honors please, that the establishment 
by law, which is compulsory — the thing which is sought by the 
invocation to this Court in the present suit — of the reading of the 
Bible in the public schools as a part of a system of religious 
instruction required to be adopted and pursued in them, is a viola- 
tion of every specification of the seventh section of our Bill of 
Rights. 

1. That provides that all men have a natural and indefeasible 
right to worship Almighty God according to the dictates of their 
own conscience. 

This is a clear recognition of the principle that religion is a 
concern exclusively of the individual person — a matter between 
man and God — with which the State has no right whatever to inter- 
fere. And this includes and protects as a civil right, unbelief and 
disbelief — the neglect of worship and even the denial of religion. 
No man can be treated as an outlaw because he is an infidel. 

2. It provides that no person shall be compelled to attend, 
erect, or support any place of worship or maintain any form of 
worship against his consent. 

Yet this Court is asked to declare that in all our public 
schools, devotional and religious exercises, by the reading of the 
Bible and singing of religious songs, shall be daily practiced, and 
that as a means for the religious instruction of the pupils, consti- 
tuting a form of worship in which neither Catholic, Jew, or Infidel 
can voluntarily unite, and yet which they are all taxed to support. 

3. The Bill of Rights declares that no preference shall be 
given by law to any religious society ; and the sixth article of the 
Constitution provides that no religious or other sect or sects shall 
ever have any exclusive right to or control of any part of the 
school funds of this State. 



254 Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et al. 

And yet we are asked to believe that at the same time our fun- 
damental law ordains that instruction in the Christian religion is 
imperatively incorporated into the system of public education, and 
that that instruction must be committed to those Christian sects who 
in common recognize the Protestant version of the Bible as the 
only revealed will of God and the only infallible rule of faith and 
practice. 

4. The Bill of Rights also declares that no interference with 
the rights of conscience shall be permitted and that no religious test 
shall be required as a qualification for office. 

That the rule sought to be enforced in this proceeding does 
most seriously and materially interfere with rights of conscience 
I do most sincerely believe, and have endeavored to show ; and 
that it establishes a religious test as a qualification for office, is 
manifest in the case of every teacher, required to read the Protest- 
ant version of the Bible, as the inspired and authoritative word of 
God. How can a Catholic priest, a Jew, or one who rejects the 
Bible as the only foundation of true religion, accept a situation as 
a teacher in the public schools on condition of participating in the 
religious exercises and instructions which it is declared are legally 
necessary to our public schools? Would not the peculiar religious 
opinions of such candidates be regarded under such a regime as an 
absolute disqualification ? 

Now what is there in the Bill of Rights that contradicts or 
qualifies these declarations and the conclusions which they require? 
Nothing else is relied upon, as the foundation of the whole argu- 
ment, but the simple sentence that " religion, morality, and knowl- 
edge, however, being essential to good government" — what then ? 
— " it shall be the duty of the General Assembly to protect every 
religious denomination in the peaceable enjoyment of its own mode 
of public worship, and to encourage schools and the means of 
instruction." And now let me ask — do the words " every religi- 
ous denomination," include every sect of religionists, or are they 
confined to those Christian sects and churches that are founded on 
the basis of the Bible as the only infallible rule of faith and prac- 
tice and the exercise of private judgment in its interpretation ? Do 
they not include Roman Catholics ? Do they not embrace Jews ? 
Do they not include Unitarians, Socinians, Deists and Theists of 



Argument of Stanley Matthews. 255 

Minor ct al. •v. Board of Education of Cincinnati ct al. 

every name, who choose to associate for the purpose of religious 
worship ? There is but one answer to these questions. .Every 
religious body and association, without respect to its name or faith, 
is included and all are expressly placed upon an equality as respects 
their civil rights, and equally entitled to the protection of the civil 
power in the peaceable and undisturbed exercise and enjoyment of 
their religious rights. With this admission, then, what becomes of 
the assumption that the word "religion " used in the previous and 
introductory part of the sentence — the reciting clause — shall be 
construed to mean only the prevailing religion of the people — the 
religion of a political majority — the religion of the first settlers — * 
the traditionary religion of the community — the religion of Chris- 
tianity — the religion of the Bible — the Protestant religion ? It is 
utterly without foundation, and must vanish and disappear the 
moment you attack it with an interrogation. It will not stay long 
enough to be questioned. 

And with that assumption, the whole ground of the argument 
that the Constitution ordains the Bible as a perpetual text book for 
religious exercises in the public schools sinks away into nothingness 
and the argument itself topples over. 

Indeed, if there be any logic in it, at all, it proves entirely too 
much for the plaintiffs' case. For if religious education or instruc- 
tion in religion, is a constitutional necessity in the State schools, as 
counsel contend — and if by the Constitution, religion is defined to 
be whatever any individual or association professes to hold as such 
— and all are on an equality under the protection of the State — 
then every form and description of religious tenets, opinions and 
doctrines must be taught alike, and as of equal claim to truth and 
authority, by the religious teachers appointed by the State. And 
this is. simply a reductio ad absurdum. 

It Is sought to escape this absurdity by limiting the constitu- 
tional definition to a "broad Christianity" — meaning by that, if 
meaning can be attached to such a phrase — the opinions and pre- 
cepts common to all Christian denominations. But this I have 
already shown to be a constitutional impossibility, for that instru- 
ment equally recognizes other religions besides Christianity ; besides 
which it is an impossibility in fact as well as in law, to obtain from 



256 Superior Court of Cincinnati. 

Minor et al. <u. Board of Education of Cincinnati et al. 

any resolution of the conflicts of Christian sects, any residuum of 
a common factor. The attempt would be hopeless. 

The truth is, the plain and common sense construction of the 
clause is the only admissible one. It is recited that "religion, mor- 
ality, and knowledge are essential to good government." For that 
reason the legislative body are enjoined to do two things — first, 
equally to protect the peaceable exercise by every religious denom- 
ination of its own peculiarities — second, to establish by law, a sys- 
tem of public instruction, such as to the General Assembly may 
seem best. There is no implication whatever, that such a system 
may not be purely secular — may not include only the elementary 
branches of an English education. There is nothing whatever to 
require, or even to justify the conclusion that any express instruc- 
tion in religion should be given in the schools at all. 

It might well be claimed that the provision should be inter- 
preted distributively, so that religion and morality would be consid- 
ered as being promoted by the protection to be given to religious 
assemblies and worship; and knowledge, by the establishment of 
schools. But without insisting on that — how can it be said, as it 
has been, that schools, in which instruction is confined merely to 
secular knowledge, are irreligious, godless, and atheistic ? Is it the 
necessary tendency of learning to read, to write, to cipher, to pro- 
mote impurity ? Is the study of geography and grammar immoral ? 
Is the growth of knowledge in history and science essentially pro- 
ductive of infidelity ? If it be said, as it has been said, that the 
establishment of such a system of public instruction, is the estab- 
lishment of Atheism by law, then, what escape is there from the 
conclusion that religious instruction as insisted upon in this case, 
as being required by law, is also therefore the establishment 
of a State religion, and that, the religion of only a portion of 
the community. 

Let me not be misunderstood. I believe in religion, in its 
priceless, inestimable importance and value, both " for the life that 
now is, and for that which is to come " — for this world and 
eternity. 

I believe in the religious education of children ; in their care- 
ful training, from infancy to youth and manhood, by precept and 
example, in true and practical piety, in the fear of God, and to 



Argument of Stanley Matthews. 257 

Minor et al. -v. Board of Education of Cincinnati tt al. 

love their fellow men ; that they should be taught to remember 
their Creator in the days of their youth. I believe as firmly as a 
man can, that they should be most watchfully and sedulously 
instructed, day by day, precept upon precept, line upon line, here a 
little and there a little, not merely in the learning of abstract 
morals, but in the duties of a religious life, based upon the motives, 
sanctions, instructions, examples, and inspirations that can only be 
found in the Gospel of God our Savior, and the scheme of redemp-- 
tion for a lost and sinful race as revealed in the person and work of 
the God-Man, Christ Jesus, and held forth in the instructions, and 
services, and means of grace, and living oracles, committed to the 
keeping of the church of the living God, as his kingdom on the 
earth. 

But what I do say, and say most earnestly and with vehement 
protest, is, that with this branch of education the State, the civil 
power — through its law-making, judicial and executive administra- 
tion ; through its politics and its parties; through its secular agents 
and officers; through its boards of education and schoolteachers — 
has, rightfully, and can have, nothing whatever to do. Procul, 
procul este profani! Let no unholy hands be laid upon the sacred 
ark. 

And now, let us recur to the proposition and claim of the 
opposing counsel — that Christianity is part of our common law, of 
our internal public law, of our fundamental public policy, in such a 
sense that instruction in it, by reading the Bible and otherwise, is a 
constitutional necessity in our system of public schools. 

To this general proposition the gentlemen have cited the 
opinion of the Supreme Court of the United States, as delivered by 
Mr. Justice Story in the case of Vidal v. Girard's Executors, 2 How- 
ard's Rep. 127, the great case upon the trusts for Girard College, 
and quoted certain parts of that opinion as if conclusive upon this 
question. It is to be remarked, however, that they were more pro- 
fuse in their extracts from the unsuccessful argument of Mr. Webster 
in the case than liberal in reading from the judgment of the court 
which overruled it. 

It will be remembered that the attack upon the will was made 
upon two grounds — as far as the present question was concerned — 
that the testator had prohibited religious instruction, and had for- 



258 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

bidden Christian ministers from being instructors in his college ; and 
the argument was precisely that relied upon by the counsel for the 
plaintiffs in the present case. 

I will read that portion of Judge Story's opinion which dis- 
poses of these objections, pp. 200, 201 : 

"The objection, then, in this case, goes to this: either that 
the testator has totally omitted to provide for religious instruction, 
in his scheme of education (which, from what has already been 
said, is an inadmissible interpretation), or that it includes but par- 
tial and imperfect instruction in those truths. In either view can it 
be truly said that it contravenes the known law of the State of 
Pennsylvania upon the subject of charities, or is not allowable under 
the article of the Bill of Rights already cited ? Is an. omission to 
provide for instruction in Christianity, in any scheme of school or 
college education, a fatal defect, which avoids it, under the law of 
Pennsylvania ? If the instruction provided is incomplete and 
•imperfect, is it equally fatal ? These questions are propounded 
because we are not aware that anything exists in the Constitution 
or laws of Pennsylvania, or the judicial decisions of its tribunals, 
which would justify us in pronouncing that such defects would be 
so fatal. Let us take the case of a charitable donation to teach 
poor orphans reading, writing, arithmetic, geography, and naviga- 
tion, and excluding all other studies and instruction, would the 
donation be void as a charity in Pennsylvania ; as being deemed 
derogatory to Christianity ? Hitherto, it has been supposed that a 
charity for the instruction of the poor might be good and valid in 
England, even if it did not go beyond the establishment of a gram- 
mar school. And, in America, it has been thought, in the absence 
of any express prohibitions, that the donor might select' the studies, 
as well as the classes of persons who were to receive'his bounty, 
without being compelled to make religious instruction a necessary 
part of their studies. It has hitherto been thought sufficient 
if he does not require anything to be taught inconsistent with 
Christianity." 

I leave it to the gentlemen to say why they did not bring to 
the notice of the Court that part of the decision. 

Mr. Sage. That was not an institution to be supported by 
taxation. 

Mr. Matthews. What difference does that make ? The gen- 
tlemen claimed by that decision that Christianity was so much a 
part of the law of Pennsylvania, so much a part of a collegiate 



Argument of Stanley Matthews. 259 

Minor et ah -v. Board of Education of Cincinnati et ah 

education,' that a scheme of education which did not include it was 
void. Judge Story expressly decides the contrary. But Judge Story 
is not alone. The authorities are not contradictory. They are abso- 
lutely unanimous on that point in this country. 

I find the law upon this subject, in all its aspects, stated with 
clearness and force by Judge Cooley, one of the justices of the 
Supreme Court of Michigan, in his recent and very valuable 
treatise on Constitutional Limitations, chap. 13, p. 467. I read a 
few extracts, commending the entire chapter to the careful perusal 
of the Court. He says : 

" He who shall examine with care the American Constitutions 
will find nothing more fully or plainly expressed than the desire of 
their framers to preserve and perpetuate religious liberty, and to 
guard against the slightest approach towards inequality of civil or 
political rights, based upon difference of religious belief. * * * 

" Those things which are not lawful under any of the Ameri- 
can Constitutions may be stated thus: 

" 1. Any law respecting an establishment of religion. The 
Legislatures have not been left at liberty to effect a union of Church 
and State, or to establish preferences by law in favor of any one 
religious denomination or mode of worship. There is not religious 
liberty where any one sect is favored by the State and given advan- 
tage by law over other sects. Whatever establishes a distinction 
against one class or sect is, to the extent to which the distinction 
operates unfavorably, a persecution ; and, if based on religious 
grounds, is religious persecution. It is not toleration which is estab- 
lished in our system, but religious equality. 

"2. Compulsory support, by taxation or otherwise, of religious 
instruction, Not only is no one denomination to be favored at the 
expense of the rest, but all support of religious instruction must be 
entirely voluntary. 

" 3. Compulsory attendance upon religious worship. Who- 
ever is not led by choice or a sense of duty to attend upon the 
ordinances of religion, is not to be compelled to do so by the State. 
The State will seek, so far as practicable, to enforce the obligations 
and duties which the citizen may owe to his fellow citizen, but 
those which he owes to his Maker are to be enforced by the 
admonitions of the conscience, and not by the penalties of human 
laws.' 

Again, this writer says : 

"It is frequently said that Christianity is a part of the law of 



iSo Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

the land. In a certain sense, and for certain purposes, this is true. 
* * * But the law does not attempt to enforce the precepts of 
Christianity on the ground of their sacred character or divine origin. 
Some of these precepts are universally recognized as being incapa- 
ble of enforcement by human laws, notwithstanding they are of 
continual and universal obligation. Christianity, therefore, is not 
a part of the law of the land, in the sense that would entitle the 
courts to take notice of, and base their judgments upon it, except so 
far as they should find that its precepts had been incorporated in 
and thus become a component part of the law." 

In another place, page 477, he says : 

" Whatever deference the Constitution or the laws may 
require to be paid in some cases to the conscientious scruples or 
religious convictions of the majority, the general policy always is to 
carefully avoid any compulsion which infringes on the religious 
scruples of any, however little reason may seem to other persons to 
underlie them." 

The case of the State v. Chandler, 2 Harrington's Rep. 553, 
was an indictment for blasphemy against the Christian religion, 
and involved the discussion of the question how and in what sense 
it could be said that Christianity was part of the law of the land. 
It is very elaborately and learnedly examined and explained in the 
opinion of the court by Justice Clayton. It declares that "the 
common law was, as Lord Coke expressed it in Sir Wm. Her- 
bert's case, 3 Rep. 426, the preserver of the common peace of the 
land ;" and therefore we find it punished outrages on or breaches of 
the peace of society, and also acts whose tendency was to disturb 
that peace. * * * But even in England, Christianity was 
never considered as a part of the common law, so far as that for a 
violation of its injunctions, independent of the established laws of 
man, and without the sanction of any positive act of Parliament 
made to enforce these injunctions, any man could be drawn to an- 
swer in a common law court. It was a part of the common law 
" so far that any person reviling, subverting or ridiculing it might 
be prosecuted at common law," as Lord Mansfield has declared ; 
because, in the judgment of our English ancestors and their judi- 
cial tribunals he who reviled, subverted or ridiculed Christianity, 
did an act which struck at the foundation of their civil society and 
tended by its necessary consequences as they believed to disturb 



Argument of Stanley Matthews. 261 

Minor et al. v. Board of Education of Cincinnati ei al. 

the common peace of the land of which (as Lord Coke had reported) 
the common law was the preserver. * * * It adapted itself to 
the religion of the country just so far as was necessary for the 
peace and safety of civil institutions ; but it took cognizance of 
offenses against God only where, by their inevitable effects, they 
became offenses against man and his temporal security." * * * 

* * * It is true, that the maxim of the English law " that 
Christianity is a part of the common law" may be liable to mis- 
construction and has been misunderstood. It is a current phrase 
among the special pleaders "that the almanac is a part of the law 
of the land." By this it is meant that the courts will judicially 
notice the days of the week, month, and other things, properly be- 
longing to an almanac, without pleading or proving them. In the 
same sense it is sometimes said that the lex parliamentaria is a part 
of the law of the land. So too, we apprehend, every court in a 
civilized country is bound to notice in the same way what is the 
prevailing religion of the-people. If in Delaware the people should 
adopt the feiuish or Mahometan religion, as they have an unquestion- 
able right to do, if they prefer it, this Court is bound to notice it as their 
religion and to respect it accordingly. " * * * 

" It (the common law) became the preserver of the peace and 
good order of society throughout the land, and noticed what was 
the religion of the people, to the end that it might preserve that 
peace and good order. It sustained indictments for wantonly and 
maliciously blaspheming God or the founder of the Christian reli- 
gion, because such blasphemy tended to subvert the peace and good 
order which it was bound to protect. But it sustained no indict- 
ment for a mere sin against God as a common law offense where 
these objects of its care were not affected. It did not look to the 
condition of man in another world to punish and thus prepare him 
for it in this. That was the loathsome duty of some ecclesiastical 
commissioner, some fiery bigot or Star Chamber judge. While 
these punished blasphemy as a spiritual offense pro salute animcs, 
the common law only punished it when it tended to create a riot or 
break the peace in some other mode, or subvert the very founda- 
tion on which civil society rested." * * * >!< "We 
hold and have already said that the people of Delaware have a full 
and perfect constitutional right to change their religion as often as 
18 



262 Superior Court of Cincinnati. 

Minor et al. i>. Board of Education of Cincinnati ct a!. 

they see fit. They may, to-morrow, if they think it right, profess 
Mahometanism. or Judaism, or adopt any other religious creed 
they please ; and so far from any court having power to punish 
them for such an exercise of right, all their judges are bound to 
notice their free choice and religious preference and to protect them 
in the exercise of their right. Put the case then, that they repu- 
diate the religion of their fathers and adopt Judaism ; and that their 
legislature, in obedience to their wishes, ordains that to deride or 
ridicule the Jewish creed shall be blasphemy, and punishable as 
blasphemy is now punished. On an indictment against any man 
for maliciously reviling Moses in public, in the language of this 
defendant and publishing the Jewish religion as a villainous imposi- 
tion, are we, or are we not, bound to sentence him according to the 
statute ? Suppose the people then abjure Judaism, adopt the Ko- 
ran, and profess the religion of Mahomet. If their legislature 
enact that to revile or ridicule the prophet shall be blasphemy, may 
we, or may we not, against him who shall go into their public pla- 
ces and with a loud voice maliciously revile and ridicule Mahomet, 
denounce the penalties of their statute ?" * *• * * « It will 
be seen then that in our judgment by the Constitution and laws of 
Delaware the Christian religion is a part of those laws; so far that 
blasphemy against it is punishable, while the people prefer it as their 
religion and no longer. The moment they change it and adopt any 
other, as they may do, the new religion becomes in the same sense, 
a part of the law, for their courts are bound to yield it faith and 
credit and respect it as their religion." 

From these extracts it appears that the right to create and 
punish the offense of blasphemy, does not rest upon the ground of 
a lawful power in government, to punish what are only sins against 
God; nor upon the ground that Christianity is of divine origin and 
authority; nor that it is a part of the law of the land in any other 
sense, than, that being professed by the mass of the population, the 
law takes notice of that as a fact, in determining that an act which 
grossly outrages the public sense of decency, and is directly calcu- 
lated to provoke a breach of the public peace and order, may be 
treated as an offense against civil society. 

What is important and particularly to be pondered is, that in 
the same sense in which it is claimed that that form of Christianity 



Argument of Stanley Matthews. 26 3 

Minor et al. v. Board of Education of Cincinnati et al. 

which sets forth the right of private judgment exercised in the 
reading of the Bible without note or comment, as its creed — to- 
wit : Protestant Christianity — is now the lav/ of the land, so that 
it has a right to control the character of religious instruction fur- 
nished to the schools of the State, in that same sense, to-morrow 
or next day, Judaism or Infidelity, or if that is considered too re- 
mote, then Roman Catholicism, if professed by a political majority 
in the community, may assert its corresponding right, and using 
the very arguments invented against it, not only exclude the 
Protestant Bible, but insist upon the adoption of Romish forms of 
worship, the celebration of the xMass and sacred hymns to the Vir- 
gin Mary, the election of Romish priests as teachers, and the use 
of text-books, inculcating the views of the Romish Church upon 
religion. On what ground could the Protestant then object? The 
religion of the majority is the law of the land. Will he say that 
his rights of conscience are invaded ? It will be replied: Your chil- 
dren may retire from the regular exercises of the school and read 
the Protestant version in private. Does he still answer and pro- 
test : You have no right to tax us for the support of instruction 
in what we believe to be dangerous religious error, under political 
institutions which forbid all preferences by law in matters of reli- 
gion. The reply is ready : So did ye unto us, when you had polit- 
ical power. By the same measure ye meted to us, we measure to 
you again. And what can the gainsayer say to that ? 

May it please the Court I was considering the proposition that 
the State, the civil power, as such, in its treatment of religion, in 
respect to what are called offenses against religion, did not inter- 
fere upon religious grounds, and claiming it on the decision, of Judge 
Clayton in the case in Harrington's Reports, which showed that 
the statutes against blasphemy were upheld only on the ground 
that an infraction of them tended to produce civil disorder, tended 
to provoke breaches of the public peace, because it insulted the 
opinions and feelings of the mass of the people; and that the same 
principle would protect Mohammedanism, or Buddhism, or Judaism, 
as well as Christianity; and that the same principle lies at the 
foundation of what are called the Sabbath_ laws, the laws that are 
usually looked to for the purpose of protecting the Christian Sab- 
bath from desecration. How is it ? As I said the civil power does 



264 Superior Court of Cincinnati. 

Minor ct al. v. Board of Education of Cincinnati et al. 

not shut its eyes to facts, it sees them. It recognizes the fact that 
a large body of the community acknowledge the religious duty of 
keeping as a sacred rest a certain day. Now, then, the State, as a 
mere civil regulation on its side, looking also at the physical and 
intellectual and moral facts of human nature, comes to the conclu- 
sion, that as a mere civil institution, it is well to have one day in 
seven set apart as a day of secular, not of sacred rest ; and, there- 
fore, it passes laws forbidding labor one day in the week, and for 
the purpose of conformity merely it selects the day which the 
majority of the community recognizes as a dav of religious rest. 
But it might as well have selected any other, and the statute is sup- 
portable only on the idea of its being a civil regulation, founded on 
civil modes of human conduct. 

Such is the express and positive judgment of the Supreme 
Court of this State in the case of Bloom v. Richards, 2 Ohio State 
Rep. 387, in which it was held that, "under the provisions of our 
Constitution, neither Christianity nor any other system of religion 
is a part of the law of this State. We have no union of Church 
and State, nor has our government ever been vested with authority 
to enforce any religious observance simply because it is religious. 
Of course it is no objection, but on the contrary it is a high recom- 
mendation to a legislative enactment, based upon justice or public 
policy, that it is found to coincide with the precepts of a pure reli- 
gion 5 nevertheless, the power to make the law rests in the legisla- 
tive control over things temporal, and not over things spiritual. 
The statute prohibiting common labor on the Sabbath could not 
stand for a moment as the law of this State if its sole foundation 
was the Christian duty of keeping that day holy, and its sole motive 
to enforce the observance of that duty. It is to be regarded as a 
mere municipal or police regulation, whose validity is neither 
strengthened nor weakened by the fact that the day of rest it 
enjoins is the Sabbath day." 

This view of the relation of law to morality is maintained by 
a recent law writer, Mr. James Fitzjames Stephens, in his work on 
the Criminal Law of England, p. 90, in the following language : 

"Does then the law affirm any, and if so, what system of 
morals to be true ? The law makes no such affirmation. It has 
nothing whatever to do ivith truth. It is an exclusively practical 



Argument of Stanley Matthews. 16$ 

Minor et al. v. Board of Education of Cincinnati tt al. 

system, invented and maintained for the purpose of an actually 
existing state of society. But though the law is entirely independ- 
ent of all moral speculation, and though the judges who administer 
it are and ought to be deaf to all arguments drawn from such a source, 
it constantly refers to, and for particular purposes, notices, the 
moral sentiments which, as a matter of fact , are generally enter- 
tained in the nation in which it is established. Thus the rule as to 
privileged communications in cases of libel recognizes ' moral and 
social duties of imperfect obligation' as having the legal effect of 
justifying communications which might otherwise be actionable 
and perhaps indictable." [Harrison v. Bush, 5 Ell. & Bl. 344.) 
And adds, "that this is the only ground on which the punishment 
of blasphemy, or the administration of the law relating to libel and 
conspiracy can be understood." 

So I have no doubt that the power of the State extends, as it 
is expressly declared in our Bill of Rights, to the protection of 
every religious community or association, in the peaceable enjoy- 
ment of their public worship; so it punishes as an aggressor a 
breaker of laws, a violator of the public peace, any person who 
disturbs religious assemblies. And I have no doubt that the civil 
power extends so far that where certain religious observances come 
in conflict with the peace and good order of society, that the State 
can suppress them. 

As, for instance, if any body of Christians should see fit to 
make a practice of having public religious processions through the 
streets, on the day when other bodies are worshiping in public 
places of assembly, so as to disturb them, the civil law can forbid 
them without any infraction of conscientious rights, and against 
any objections ; it being the business of the civil power to protect 
society in its peace and order. 

But I deny the proposition that the civil power has any author- 
ity in spiritual matters, or any right to found any civil enactments 
upon the ground that they are breaches of the Divine law. 

I would like to read a paragraph upon that point from an 
exceedingly able and philosophic discussion of the ground of law 
and civil obligations, by Charles Spencer M. Phillips, in his work 
on Jurisprudence, p. 274 : 

" To what extent the State is morally justified in exercising its 
penal jurisdiction, is a question of policy, rather than of jurispru- 



266 Superior Court of Cincinnati. 

Minor et al. w. Board of Education of Cincinnati et al. 

dence. The offender himself can not complain so long as he 
undergoes no suffering which exceeds that inflicted by him. But it 
must never be forgotten that evil for evil is the limit, though not 
necessarily the measure, of criminal punishment. The argument 
that experience has shown the insufficiency of equitable retaliation 
to suppress a particular offense, is one which, though long used with 
terrible force by the men of blood who wore the English ermine 
in the past generation, will never be admitted by a conscientious 
moralist. 

" Lord Campbell's anecdote of the judge who prayed that a 
convicted forger might receive that mercy in Heaven which the 
safety of the paper currency made it necessary to deny him upon 
earth, appears in these days no less ludicrous than shocking. But 
it may be feared that, in days still far from remote, the English 
legislature seriously reasoned in the same unscrupulous spirit. 
Some moralists have maintained the opinion more specious, but for 
that very reason, more dangerous than the plea of expediency, that 
the State is entitled to punish crimes, not through the medium of 
the natural right of retaliation belonging to every injured party, 
but as the earthly representative of Divine authority, and as the 
earthly minister of Divine justice. Those who believe that one 
human being' is morally justified in avenging whatever he chooses 
to think sin in another, are clearly consistent in ascribing the same 
authority to the State, and to question whether anarchy or slavery 
is preferable is altogether one of taste. But it would be difficult to 
maintain that a certain number of human beings acquire, by acting 
in concert, a power of detecting and a right of punishing moral 
evil, which no individual among them singly possesses ; or that 
they are able, by selecting a fellow-creature and styling him a king 
or a judge, to confer upon him a jurisdiction which God has not 
conferred upon them. 

" It is painful to recall the arguments by which some men of 
unquestionable piety and ability have endeavored to support this 
extravagant doctrine. 

" They lay down the principle that the world is God's world, 
and that all who inhabit it are bound by God's law, and from this 
they infer that human justice ought, so far as human fallibility will 
allow, to be a precise counterpart of God's justice. They do not 
advert to the obvious possibility that there may be some of God s 
laws which it is not His" will to communicate to human administra- 
tion, and which human beings would, therefore, be guilty of a sin 
by attempting to enforce. But the truth is that a school of moral- 
ists has lately arisen who are in the habit of justifying their own 
feelings by gratuitously attributing them to the Deity, and in whose 
writings the use of the divine name only means that the writer 



Argument of Stanley Matthews. 267 

Minor et al. -v. Board of Education of Cincinnati et al. 

entertains a strong consciousness of sympathy or antipathy for 
which he can give no intelligent reason." 

" It ought moreover to be carefully borne in mind, that by 
admitting the principle of inflicting punishment as a retribution for 
moral evil, we introduce not only a new scale of penalties, but a 
new list of offenses. If we punish violence or fraud not as a 
crime against man, but as a sin against God, how can we refuse to 
punish those sins against God which are not crimes against man. 
And if we punish whatever we think a sin, how can we blame the 
most besotted fanatic for punishing whatever he thinks a sin ? 
How can we complain of the Puritan for imprisoning the unwary 
Sabbath breaker, or of the abbess for immuring the fugitive nun ? 
How can we even condemn the Languedocian crusades or the 
Spanish Inquisition? Justification by the necessity of self-defense 
is a plain question of fact, but there is no atrocity of persecution 
which may not be defended if we once permit human passion and 
folly to usurp the prerogatives of perfect wisdom and perfect 
love." 

To the same point I wish to read some extracts from Macau- 
ley's celebrated review of Gladstone's work on Church and State, 
which appeared in the Edinburgh Review for 1839: 

" We are desirous, before we enter on the discussion of this 
important question, to point out clearly a distinction which, though 
very obvious, seems to be overlooked by many excellent people. 
In their opinion, to say that the ends of government' are temporal 
and not spiritual, is tantamount to saying that the temporal welfare 
of man is of more importance than his spiritual welfare. But this 
is an entire mistake. The question is not whether spiritual inter- 
ests be or be not superior in importance to temporal interests ; but 
whether the machinery which happens at any time to be employed 
for the purpose of protecting certain temporal interests of a society, 
be necessarily such a machinery as is fitted to promote the spiritual 
interests of society. It is certain that without a division of duties 
the world could not go on. It is of very much more importance 
that men should have food than that they should have piano fortes. 
Yet it by no -means follows that every piano forte maker ought to 
add the business of a baker to his own ; for if he did so, we should 
have both much worse music and much worse bread. It is of 
much more importance that the knowledge of religious truth should 
be widely diffused, than that the art of sculpture should flourish 
among us. Yet it by no means follows that the Royal Academy 
ought to unite with its present functions those of the Society for 
promoting Christian knowledge, to distribute theological tracts, 



268 Superior Court of Cincinnati. 

Minor et al. "v. Board of Education of Cincinnati et a!, 

to send forth missionaries, to turn out Nollikins for being a Catho- 
lic, Bacon for being a Methodist, and Flaxman for being a Sweden- 
borgian. For the effect of such folly would be that we should 
have the worst possible Academy of Arts and the worst possible 
Society for the promotion of Christian knowledge, The commun- 
ity, it is plain, would be thrown into universal confusion if it 
were supposed to be the duty of every association which is formed 
for one good object, to promote every other good object. 

" As to some of the ends of civil government, all people are 
agreed. That it is designed to protect our persons and our prop- 
erty — that it is designed to compel us to satisfy our wants, not by 
rapine, but by industry — that it is designed to compel us to decide 
our differences, not by the strong hand, but by arbitration — that it 
is designed to direct our whole force, as that of one man, against 
any other society which may offer us injury — these are propositions 
which will hardly be disputed." 

>;<: % >;< * % * * * * 

" We think that government, like any other contrivance of 
human wisdom, from the highest to the lowest, is likely to answer 
its main end best when it is constructed with a single view to that 
end. Mr. Gladstone, who loves Plato, will not quarrel with us for 
illustrating our proposition, after Plato's fashion, from the most 
familiar objects. Take cutlery, for example. A blade which is 
designed both to shave and carve will certainly not shave so well as 
a razor, or carve so well as a carving-knife. An academy of paint- 
ing, which should also be a bank, would, in all probability, exhibit 
very bad pictures and discount very bad bills. A gas company, 
which should also be an infant school society, would, we appre- 
hend, light the streets ill, and teach the children ill. On this prin- 
ciple, we think that government should be organized solely with a 
view to its main end, and that no part of its efficiency for that end 
should be sacrificed in order to promote any other end, however 
excellent." 
********* 

"We may illustrate our view of the policy which govern- 
ments ought to pursue with respect to religious instruction, by 
recurring to the analogy of a hospital. Religious instruction is not 
the main end for which a hospital is built ; and to introduce into a 
hospital any regulations prejudicial to the health of the patients, on 
the plea of promoting their spiritual improvement — to send a rant- 
ing preacher to a man who has just been ordered by the physician 
to lie quiet and try to get a little sleep — to impose a strict observ- 
ance of Lent on a convalescent who has been advised to eat 
heartily of nourishing food — to direct, as the bigoted Pius the Fifth 



Argument of Stanley Matthews. 269 

Minor el al. -v. Board of Education of Cincinnati et al. 

actually did, that no medical assistance should be given to any per- 
son who declined spiritual attendance — would be the most extrava- 
gant folly. Yet it by no means follows that it would not be right 
to have a chaplain to attend the sick, and to pay such a chaplain out 
of the hospital funds. Whether it will be proper to have such a 
chaplain at all, and of what religious persuasion such a chaplain 
ought to be, must depend on circumstances. There may be a 
town in which it would be impossible to set up a good hospital 
without the help of people of different opinions. And religious 
parties may run so high that, though people, of different opinions 
are willing to contribute to the relief of the sick, they will not 
concur in the choice of any one chaplain. The High Churchmen 
insist that, if there is a paid chaplain, he shall be a High Church- 
man. The Evangelicals stickle for an Evangelical. Here it would 
evidently be absurd and cruel to let a useful and humane design, 
about which all are agreed, fall to the ground, because all can not 
agree about something else. The governors must either appoint 
two chaplains, and pay them both, or thev must appoint none ; 
and every one of them must, in his individual capacity, do what he 
can for the purpose of providing the sick with such religious 
instruction and consolation as will, in his- opinion, be most useful 
to them." 

" Again, on our principle, no government ought to press on 
the people religious instruction, however sound, in such a manner 
as to excite among them discontents dangerous to public order. 
For here again no government should sacrifice its primary end, to 
an end intrinsically indeed of the highest importance, but still only 
a secondary end of government, as government." 

This celebrated essay states the case of the English Church 
in Ireland., and the duty of a British statesman towards it, in this 
lano-uap-e . 

" But, if there were, in any part of the world, a national 
Church regarded as heretical by four-fifths of the nation committed 
to his care — a Church established and maintained by the sword — a 
Church producing twice as many riots as conversions — a Church 
which, though possessing great wealth and power, and though 
long backed by persecuting laws, had, in the course of many gen- 
erations, been found unable to propagate its doctrines, and barely 

able to maintain its ground — a Church so odious, that fraud and vio- 

... 
lence, when used against its clear rights of property, were generally 

regarded as fair play — a Church whose ministers were preaching to 



270 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et ah 

desolate walls, and with difficulty obtaining their lawful subsistence 
by the help of bayonets — such a Church, on our principles, could not, 
we must own, be defended. We should say that the State which 
allied itself with such a Church, postponed the primary end of govern- 
ment to the secondary ; and that the consequences had been such as 
any sagacious observer would have predicted. Neither the primary 
nor the secondary end is attained. The temporal and spiritual inter- 
ests of the people suffer alike. The minds of men, instead of 
being drawn to the Church, are alienated from the State. 
The magistrate, after sacrificing order, peace, union, all the inter- 
ests which it is his first duty to protect, for the purpose of promo- 
ting pure religion, is forced after the experience of centuries, to 
admit that he has really been promoting error. The sounder the doc- 
trines of such a Church — the more absurd and noxious the super- 
stition by which those doctrines are opposed — the stronger are the 
arguments against the policy which has deprived a good cause of its 
natural advantages. Those who preach to rulers the duty of 
employing power to propagate truth would do well to remember 
that falsehood, though no match for truth alone, has often been 
found more than a match for truth and power together." * * 

The man whom Macauley thus reviewed in 1839 was the man 
who thirty years later was borne into the chief seat of power as 
Prime Minister of England upon a popular decree in favor of the 
disestablishment of the State Church in Ireland, and who vindi- 
cated his reputation as a wise statesman by carrying that measure 
through Parliament — that, too, in the face of a most determined oppo- 
sition from the most conservative and aristocratic influences in the 
House of Lords, at the sacrifice of his own reputation for consist- 
ency, rising superior to the prejudices of his previous opinions, and 
against the remonstrances and protests of a large body of good men 
throughout the three Kingdoms, who contended that the measure 
was a blow struck at religion itself, whose interests and rights the 
Prime Minister was loudly accused of betraying. But time and 
reflection had set Gladstone right, though it took thirty years to do 
it, and justified Macaulay, his celebrated critic and reviewer, who 
did not live to see the full fruit of his own liberal teaching : and 
time and reflection will set right those who complain of him : 
history and posterity will vindicate and magnify the fame of the 
great statesman, who could lead in the accomplishment of a great 
act of justice, notwithstanding the prejudices of his earlier convic- 



Argument of Stanley Matthews. iyi 

Minor et al. -v. Board of Education of Cincinnati et al. 

tions, and who when intrusted with the responsibility of power, 
was honest enough and bold enough to use it, against the bigotry of 
his co-religionists, but in the interest of religion itself, though in 
hostility to the domination of his own church. 

I wish partly as a personal gratification to myself, and partly 
for the sound and wholesome truth conveyed in sound and whole- 
some words which it contains, to read to your Honors a part of the 
confession of the church to which I belong, on the duties and 
functions of the civil magistrate. The Westminster Confession 
of Faith, chapter xxiii, section 3, says : 

" Civil magistrates may not assume to themselves the adminis- 
tration of the word and sacraments, or the power of the keys of 
the kingdom of heaven, or in the least interfere in the matters 
of faith. Yet, as nursing fathers, it is the dutv of civil magistrates 
to protect the church of our common Lord without giving the 
preference to any denomination of Christians above the rest, in 
such manner that all ecclesiastical persons whatever shall enjoy the 
full, free and unquestioned liberty of discharging every part of their 
sacred functions, without violence or danger. And as Jesus 
Christ hath appointed a regular government and discipline in His 
church, no law of any Commonwealth should interfere, let or hin- 
der the due exercise thereof among the voluntary members of any 
denomination of Christians, according to their own profession and 
belief. It is the duty of civil magistrates to protect the person 
and good name of all their people, in such an effectual manner 
as that no person be suffered, either upon pretense of religion 
or infidelity, to offer any indignity, violence, abuse or injury to 
any other person whatsoever ; and to take order that all religious 
and ecclesiastical assemblies be held without molestation or dis- 
turbance." 

Thus, may it please your Honors, am I taught by my own 
church — a church which elsewhere in the same confession teaches 
that "God alone is Lord of the conscience" — and which here 
plainly defines and declares its own rights and the rights of the 
whole Christian Church, and the limits of the civil power in res- 
pect of them ; and in so doing, denies to the civil magistrate any 
assumed right in the administration of the word, which means neither 
more nor less, than, any part or lot in instructing in religion — 



272 Superior Court of Cincinnati. 

Minor et at. v. Board of Education of Cincinnati et at. 

denies his right, in the least, to interfere in matters of faith , which 
he attempts to exert when, by law, he decrees that a particular ver- 
sion or translation of the Bible shall be publicjy read, as part of a 
system of religious worship and instruction, by and to particular 
persons, at stated times and places, thereby implicitly sitting in 
judgment upon the questions relating to its inspiration, its canon- 
ical character, the accuracy of its translation, its character and 
claims as the Word of God, and opening the way, if such a power 
is admitted, for a further claim, to expound, interpret and teach by 
authority its true meaning ; denies his right to give the preference 
to any denomination of Christians above the rest, a right which is 
clearly exercised where the State authorities, school boards or 
courts of law imperatively ordain a form of religious devotion 
to be practiced, or a mode of religious instruction to be adopted, in 
the public and common schools, which the consciences of any 
Christian denomination prevent them from attending, supporting- or 
countenancing ; declares the right of every denomination of Chris- 
tians, to exercise its discipline and government ecclesiastically, 
among its voluntary members, according to their own profession 
and belief, without let, hinderance or interference with, by the law 
of any commonwealth, and thus justifies, as a civil right, the prac- 
tice and discipline of the Roman Catholic Church in withholding 
from its members the use of the Bible, its denial of their ecclesias- 
tical right to judge for themselves of its meaning, and its forbid- 
ding any instruction in religion except such as it approves and 
appoints ; a doctrine, in this particular, I will add, most seriously 
and grossly violated in a late case in Chicago, where a civil tribunal 
laid its injunction on the proceedings of an ecclesiastical court, 
when engaged in the administration of its discipline upon a minis- 
ter of its own church, for an alleged ecclesiastical offense, and 
which I can not but believe was a dangerous invasion of the rights 
of religion by the civil power. 

But this noble article of the Westminster Confession of 
Faith goes one step farther, in its vindication of the rights of con- 
science against the power of the civil magistrate. It recognises 
and throws the mantle of its protection, not merely over rights 
which it claims for those whom it regards as peculiarly its own — 
the confessors of its own faith — but concedes the same to all others, 



Argument of Stanley Matthews. 273 

Minor et al. v. Board of Education of Cincinnati et al. 

even to those who deny, not only its own confession, but the very 
faith itself — even infidels ; for it maintains it to be the duty of 
civil government equally to protect and defend all the people, both 
in person and good name, and so effectually, that no person be suf- 
fered to offer any indignity, violence, abuse or injury to any other 
person whatsoever, either upon pretense of religion or infidelity! 

In other words it is not orthodox Presbyterianism in this 
country, to deny to an infidel the same civil rights that belong to 
a saint. 

I have already referred your Honors, as have also my col- 
leagues, to the judgment and opinion of the Supreme Court of this 
State in the case of .Bloom v. Richards, 2 Ohio State Rep, 387, 
which is approved and followed in the subsequent case of 
McGatrick v. Wason, 4 Ohio State Rep. 566. 

The gentlemen on the other side vainly seek to escape the 
effect of these decisions by dismissing the opinions as obiter dicta. 
There is no way of escape for them. The point to which they 
are cited was directly and necessarily involved in the judgment and 
was expressly ruled. And the authority of these cases is not 
merely persuasive ; it is binding and conclusive. 

And the proposition they establish is very significant upon 
the argument I am now considering. It is that no power whatever 
is possessed by the legislature over things spiritual, but only over 
things temporal ; no power, whatever, to enforce the performance 
of religious duties, simply because they are religious — but only, 
within the limits of the Constitution, to maintain justice and pro- 
mote the public welfare. Does it not strictly follow from that 
also that it has no power to provide by law, at public expense, for 
any instruction in religion ? Is not religious learning or education, 
more of a spiritual and less of a secular concern, than the per- 
formance of religious duties — the practice of religious precepts — ■ 
the leading of a religious life ? If it be said that religious educa- 
tion tends to good citizenship, and therefore on that ground may be 
encouraged and provided for by law, is it not a sufficient answer to 
say that while religious education only tends in that direction, prac- 
tical religion — the performance of religious duties as such, and 
merely as such — not only tends toward, but is the very substance of 



274 Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et ah 

good citizenship ; and yet the State is absolutely prohibited from 
attempting the enforcement of a religious duty as such. 

But if the State is to furnish education in religion, in what I 
ask, shall it consist ? Who shall judge and determine what is true 
and what false in all that claims to be religion, or even Christianity 
— who shall pronounce with authority of law, what is to be taught 
as embraced within what have been styled the fundamental or ele- 
mentary truths of religion — who shall declare the amount, and 
kind, and degree of the knowledge to be imparted ? 

These are important questions, seriously propounded and 
deserving of respectful answer. The gentlemen on the other side, 
say they limit the religious instruction demanded to what they call 
a " broad Christianity." I have already once or twice .adverted 
to the term. I do not know that I understand it. If I do, it is a 
" broad " humbug. The Christian religion is not a vain and 
unmeaning generality. It is a definite and positive thing. It 
means something or it means nothing. In my view it is a super- 
natural scheme of redemption — a revelation from God of His 
gracious purpose and plan of salvation, to a race, "dead in tres- 
passes and sins," through the mediation and atonement of Jesus 
Christ, who, being God from eternity, became incarnate and by 
his death upon the cross became a sacrifice for sin, made expiation 
for it, and having risen from the grave ascended into Heaven, and 
there sitteth on the right hand of the Father, to make intercession 
for his people. The whole character and value of it as a religion 
consists altogether in being, as it claims to be, a supernatural plan 
of salvation from sin, otherwise irremediable. Strike out from the 
Bible the parts which disclose, reveal and teach that scheme, and 
the rest is insignificant. And any instruction' or education in reli- 
gion which does not specifically teach the facts which constitute 
that scheme, and which can not be stated even, except as convey- 
ing dogma, is no instruction in the Christian religion whatever — it 
is simply instruction in philosophy and ethics, or practical morals. 

Now, I deny the authority and the ability of civil government 
to decide upon questions of religious truth. 

The point is very cogently and conclusively argued in the case 
of Andretv v. The N. T. Bible and Prayer Book Society, 4 Sandford's 
Superior Court Rep. pp. 180-184, The question at issue there 



Argument of Stanley Matthews. 275 

Minor et al. "v. Board of Education of Cincinnati et al. 

was, whether a legacy given for the purpose of promoting the cir- 
culation of the Prayer Book of the Episcopal Church in New 
York could be sustained upon the ground of its being a pious use. 
The following extract from the opinion of the Court is long, 
but it is exceedingly to the point, and I can not excuse myself for 
not reading it at leng-th. It is as follows : 

"In the present case, we go still further, and shall refer our 
denial of the power of our Chancellor to sustain and execute a 
trust similar to that which the legacy creates, to a much earlier 
period than the repeal of the statute of Elizabeth. The use 
attached to this legacy is not a charitable use, in the usual and 
legal sense of the term. It is strictly a pious use, not otherwise 
charitable than as the noblest office of charity is the dissemination 
of religious truth, but it is impossible for a court of justice to sus- 
tain a use upon this ground, unless in a country where the truths 
of religion have been settled and defined by law, or judges have a 
discretionary power to determine and declare them. If, at any 
period in the juridical history of this State, it has been within the 
power of our Court of Chancery to decree the execution of a pious 
use violating the general rules of law, this branch of its jurisdic- 
tion was, in our judgment, wholly abolished long before the statute 
of Elizabeth was repealed. It was wholly abolished when the 
Constitution of 1777 was adopted. Under a Constitution which 
extends the same protection to every religion, and to every form 
and sect of religion, which establishes none and gives no preference 
to any, there is no possible standard by which the validity of a use 
as pious can be determined ; there are no possible means by which 
judges can be enabled to discriminate between such uses as tend to 
promote the best interest of society by spreading the knowledge 
and inculcating the practice of true religion, and those which can 
have no other effect than to foster the growth of pernicious errors, 
to give a dangerous permanence to the reveries of a wild fanati- 
cism, or encourage and perpetuate the observances of a corrupt and 
degrading superstition. Hence, unless all uses that may be denom- 
inated pious shall be subjected to the same rule as other trusts, we 
shall find no escape from this alternative ; either all uses for a 
religious purpose, whether th'e religion which they are intended to 
aid be true or false, rational or absurd, must be upheld and 
enforced ; or the uses connected with a particular form of religion 
must be selected as the special and exclusive objects of favor and 
encouragement. If we adopt the first course, we renounee the 
principle upon which pious uses were first introduced, and upon 
which alone their defense can be rested, namely — their tendency to 



276 Superior Court of Cincinnati. 

Minor a al. <v. Board of Education of Cincinnati et al. 

benefit society by diffusing the knowledge and practice of true 
religion. We disregard and practically deny the eternal distinctions 
between truth and falsehood, and give the sanction of law to the 
pernicious absurdity that all religions, however contradictory in 
their tenets and in their precepts, have a just and equal claim, not 
merely to the protection, but to the favor of government, and are 
not simply to be tolerated, but encouraged. If we adopt the 
second alternative, we violate that equality between different relig- 
ions and different forms and sects of religion, which the principles 
of our government and the provisions of our Constitution are 
designed to secure ; we create an odious distinction in the power 
to dispose of their own property between different classes of our 
citizens ; and by declaring that the religion which we favor is alone 
true, we establish it, in a restricted, it is true, but in a definite, 
sense, as the religion of the State. 

"■ We are quite aware of the answer that has been given to 
this objection. Christianity, it has been asserted, is now, in a 
modified sense, the religion of the State. It is so, as a part of 
that common law which our ancestors introduced and we have 
retained. Christianity, therefore, furnishes the test that is desired, 
so that in judging of the validity of a use as pious, we have only 
to inquire whether it is in harmony with the doctrines that Chris- 
tianity teaches. The maxim that Christianity is part and parcel of 
the common law has been frequently repeated by judges and text 
writers, but few have chosen to examine its truth or attempt to 
explain its meaning. We have, however;, the high, authority of 
Lord Mansfield, and of his successor, the present Chief Justice of 
the Queen's Bench, Lord Campbell (Campbell's Lives of Chief 
Justices, vol. 2, p. 513), for stating, as its true and only sense, that 
the law will not permit the essential truths of revealed religion to 
be ridiculed and reviled. In other words, that blasphemy is an 
indictable offense at common law. The truth of the maxim in 
this very partial and limited sense may be admitted. But if we 
attempt to extend its application we shall find ourselves obliged 
to confess that it is unmeaning or untrue. If Christianity is a 
municipal law, in the proper sense of the term, as it must be if 
a part of the common law, every person is liable to be punished 
by the civil power who refuses to embrace its doctrines and follow 
its precepts; and if it must be conceded that in this sense the 
maxim is untrue, it ceases to be intelligible, since a law without a 
sanction is an absurdity in logic and a nullity in fact. 

c 'Let it be admitted, however, that Christianity is a part of the 
common law, in any sense of the maxim which those who assert its 
truth may choose to attribute to it. The only effect of the admis- 
sion is to create new difficulties quite as impossible to overcome as 



Argument of Stanley Matthews. 277 



Minor et al. f . Board of Education of Cincinnati et al. 



those that have already been stated. How, we would then ask, in 
judging of the validity of a use as pious, are we to apply the test 
which Christianity is said to furnish ? It will not be pretended 
that the common law has supplied us with any definition of Chris- 
tianity. Yet, without a judicial knowledge of what Christianity 
is, how is it possible to determine whether a particular use, alleged 
to be pious, is or is not consistent with the truths which Christianity 
reveals ? No religious use has been or can be created that does 
not imply the existence and truth of some particular religious doc- 
trine, and hence, when we affirm the validity of a use as pious, we 
necessarily affirm the truth of the doctrine upon which it is founded. 
In a country where a definite form of Christianity is the religion 
established by law, the difficulty to which we refer is not felt, since 
the doctrines of the established church then supply the criterion 
which is sought ; but with us it can readily be shown that the 
difficulty is not merely real and serious, but insurmountable. 

" Let us suppose that a Roman Catholic had devised his whole 
estate, real and personal, to trustees and their heirs in trust, to 
apply the income forever, one half to the purchase of indulgences 
for the benefit of such as might seek them, and the other moiety to 
the payment of daily masses for the safety of his soul, and that the 
validity of this devise were the question now to be determined. 
In England, such uses are held to be void as superstitious, but the 
statute by which they are declared so we havere pealed, and some 
other rule or principle must be found to govern our decision. The 
uses, it is manifest, imply the existence and truth of certain impor- 
tant doctrines. They imply that our Savior has delegated to the 
Pope, as his vicar upon earth, the absolute and unconditional power 
of pardoning sin. They imply the existence of a purgatory, and 
the duty and efficacy of prayers for the dead. Such is the neces- 
sary import of the uses, upon the validity of which, guided by the 
light of Christianity, we are required to pronounce. Shall we, by 
sustaining them as pious, declare that the doctrines which they 
imply belong to the class of truths which the New Testament 
reveals ; or shall we, by rejecting them as superstitious, condemn 
as false and corrupt the ancient faith which so large a class of our 
citizens avow and follow ? Are these questions over which we, as 
judges, whatever we may privately think, have any jurisdiction ? 
Are they questions which any court of justice in this State, at any 
time since the formation of our present government, could right- 
fully entertain and decide ? Such are the questions that must be 
considered and decided, if uses inconsistent with the general rule 
of law are to be sustained as pious, and the proper test of their 
legality as such, is their correspondence with the true doctrines of 
Christianity. 
19 



278 Superior Court of Cincinnati, 

Minor et al. -v. Board of Education of Cincinnati et al. 

" For ourselves, if the case that we have supposed were now 
before us we should not hesitate in pronouncing our judgment, 
abstaining from any remarks upon the nature and tendency of the 
uses, neither admitting them to be pious nor condemning them as 
superstitious. We should hold the devise to be entirely void, as 
repuo-nant to those wise and salutary rules of law which forbid the 
citizen to withdraw his property, beyond a limited period, from 
that free circulation which the interests of commerce and the 
healthful action and permanence of our republican institutions alike 
demand ; and if this would be a proper decision in the case sup- 
posed, it is manifest that the same judgment ought to be pro- 
nounced in every case where a trust which involves a perpetuity 
is sought to be maintained upon the sole ground of its piety. We 
may be disposed to regret that a perpetual trust for the distribution 
of that sublime manual of true devotion, perhaps the noblest of 
human compositions, the Book of Common Prayer, can not be sus- 
tained ; but the regret must cease, when we reflect that it can only 
be sustained upon a principle that would render just as valid a sim- 
ilar trust for the circulation of the monstrous fables of the Talmud, 
or the gross impostures of the Koran." 

There is no escape, that I see, out of the difficulty. If the 
State is bound to provide religious education it has the right and 
the power to determine in what religious education consists, and to 
say what shall be taught as. religious truth and what shall be 
rejected as religious error. A writer in behalf of the theory of 
religious education by the State, writing in England, and quoted in 
the appendix to the work of the late Dr. Bannermann, of Edin- 
burgh, on the Church of Christ (vol. 2, p. 359), meets the diffi- 
culty in this way. He says : 

"It is usual with those who take the extreme views adopted 
by Dr. Wardlaw to lay stress on the question : Who is to deter- 
mine what is to be taught for religious truth to the community ? 
There is, no doubt, a difficulty here; but it is one which surely 
has been immensely exaggerated, both theoretically and practically. 
In this country, the omniscience of Parliament is as much a prin- 
ciple of government as its omnipotence — in the modified sense, of 
course, in which alone such language can be used of any human 
institution. We proceed continually on the assumption that there 
is nothing on which Parliament may not arrive at full and accurate 
knowledge. On all questions of science, of art, of business, of 
diplomacy, of warfare ; on questions of medicine and metallurgy, 
of engineering and education, of manufacture and painting — on 



Argument of Stanley Matthews. 279 

Minor ct al. -v. Board of Education of Cincinnati ct al. 

every subject, in short, that concerns the welfare of the commu- 
nity, Parliament is continually called to pronounce decisions involv- 
ing the assumption of all but infallible capacity for determining the 
truth. It will not be easy to show why a body 7 , in whose powers 
of ascertaining truth in all other departments of knowledge the 
community implictly confides, should be pronounced helplessly 
incompetent in the department of theological truth. It is no 
doubt possible that Parliament may err in the opinions it may 
authorize to be taught to the people ; but the probability of- this is 
not so great as to render it incompetent for Parliament to make the 
attempt, and if liberty be left to all who choose to dissent from the 
opinions taught by the Government teachers, every freedom seems 
to be secured to the community which, on grounds of general 
policy, can be required." 

Here we have the "conscience clause" again, as the grand 
cure-all of all schemes of religious establishment, as if the con- 
science of a Roman Catholic, or a Jew, or an Infidel, was not as 
much violated by being compelled to assist in supporting by taxa- 
tion what they deem to be religious error, as by being compelled 
to listen to it! And yet it is gravely argued and believed that 
because the Protestant Christians are a majority of this commu- 
nity, they not only have the right, but their conscience requires it 
of them as a duty, to take the common fund, contributed alike by 
all of every creed, Protestant, Catholic, Jew and Infidel, and use 
it for instructing their own children exclusively in their own relig- 
ion, saving the consciences of their neighbors by telling them if 
they can not consent to that kind of religious education for their 
children they can either go without or provide it elsewhere at their 
own expense ! 

But what extraordinary reasoning is that in the extract that I 
have just read ! That Parliament, that the Ohio Legislature, civil 
government, because it is and must be considered, from the neces- 
sity of the case, competent to deal with secular matters — subjects 
of natural knowledge — for dealing with which it was expressly organ- 
ized, and for which it exists as the only agency provided, or that 
can be provided, therefore it must also be considered as competent 
to deal with spiritual matters — subjects of supernatural knowledge 
— divine things — for dealing with which it was not organized and 
has no faculty, and for which there exists another agency expressly 



280 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati ct al. 

designed to meet this want, and claiming as its exclusive preroga- 
tive, conferred by a divine commission, to do so. The infallibility 
in religion of the civil State, of its political parties in their conven- 
tions and platforms — how much better is that than the infallibility 
of the Pope, or of general councils ? 

In other words, having fallen back from the doctrine of the 
infallibility of the Pope, this Scotch Presbyterian writer has fallen 
upon the infallibility of Parliament, and authorized the civil power, 
the Legislature of the State, to decide with all the infallible power 
of the Ecumenical Council upon the doctrines of religion. Why, 
that is not modern doctrine. That is simply the ancient doctrine 
of old Hobbes, who illustrates the whole argument of his book in 
his frontispiece, by painting the picture of that monster called the 
Leviathan, holding in one hand the sword ; in the other, the cro- 
zier. " Non est potestas, super terram, ques comparetur et." Job, 
41 ; 24. And describing that commonwealth which is invested 
with this power, both civil and spiritual, he says: 

" This done, the multitude so united in one person is called 
a commonwealth ; in Latin, civitas. This is the generation of 
that great Leviathan, or rather, to speak more reverently, of that 
mortal god, to which we owe, under the Immortal God, our peace 
and defense. For, by this authority, given him by every particular 
man in the Commonwealth, he hath the use of so much power and 
strength conferred on him that by terror thereof he is enabled to 
perform the wills of them all, to peace at home and mutual aid 
against their enemies abroad. And in him consisteth the essence 
of the Commonwealth, which, to define it, is one person, of whose 
acts a great multitude, by mutual covenants one with another, 
have made themselves every one the author, to the end that he 
may use the strength and means of them all, as he shall think 
expedient, for their peace and common defense." 

I will also read his views on a Christian commonwealth : 

"From this consideration of the right politic, and ecclesiastic 
in Christian sovereigns, it is evident they have all manner of power 
over their subjects that can be given to man for the. government 
of men's external actions, both in policy and religion ; and may. 
make such laws as themselves judge fittest for the government of 
their own subjects, both as they are the Commonwealth, and as 
they are the Church ; for both State and Church are the same men." 



Argument of Stanley Matthews. 281 

Minor et al. <v. Board of Education of Cincinnati et al. 

It is substantially the same doctrine which is often inculcated 
and elaborated in sonorous phrase by the judicious Hooker, main- 
tained by Warburton, by Paley, in modern days by Arnold, repro- 
duced in 1839 by the eloquent and accomplished scholarship of 
William E. Gladstone, the same doctrine, the same principle, and 
that is, that the State, in matters of religion, is gifted with power 
from on high to discern the truth. 

Now, if your Honors please, the truth of religion is a matter 
of spiritual discernment. As the Apostle Paul has said: " But 
the natural man receiveth not the things of the spirit of God ; for 
they are foolishness unto him ; neither can he know them, because 
they are spiritually discerned." It is a matter of spiritual discern- 
ment, and I ask the question in all sobriety where, in the constitu- 
tion and organization of any civil commonwealth on the earth, 
from the beginning to the present day, there has ever been found a 
body of civil legislators capable of deciding for anybody but itself, 
what is the truth in religion. 

There is an old lesson on this subject. I find that in the trial 
of Jesus, as recorded in the Gospel of John, that the chief priests 
accused him before Pilate of blasphemy, saying, " We have a law, 
and by our law he ought to die, because he made himself the Son 
of God." Now, when Pilate had arraigned him, he said to him, 
"Art thou the King of the Jews ? " Jesus answered him, " Sayest 
thou this thing of thyself, or did others tell it thee of me ? " 
Pilate answered him : "Am I a Jew ? Thine own nation and the 
chief priests have delivered thee unto me. What hast thou 
done?" Jesus answered: "My kingdom is not of this world. 
If my kingdom were of this world, then would my servants 
fight that I should not be delivered to the Jews ; but now is my 
kingdom not from hence." Then when the Jews found that Pilate 
would not take jurisdiction of the case on the charge of blasphemy, 
on the ground that he had made himself the Son of God, and so 
had violated the law of the Jewish theocracy, they charged him 
with treason, on the ground that he was claiming to set himself up 
against Caesar as king, and when they found out that Pilate sought 
to release him, the Jews cried out : " If thou let this man go, thou 
art not Caesar's friend. Whosoever maketh himself a king, 
speaketh against Caesar." 



282 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

Now, in this colloquy between Pilate and our Lord on this 
point, as to his kingship, and the nature of his kingdom, Pilate said 
unto him : " Art thou a king, then ?" Jesus answered : " Thou 
sayest that I am a king. To this end was I born, and for this 
cause came I into the world, that I should bear witness unto the 
Truth. Every one that is of the Truth heareth my voice." Pilate 
said unto Him : " What is Truth ?" Then was the head of the 
civil State unable to comprehend, because unable, spiritually, to see 
the Truth, as it is in Jesus — the truth of religion. 

Let the civil authorities now as well as then, beware, when 
called upon by popular clamor, whether of Pharisees or Priests, to 
pronounce upon religious truth, lest, in their necessary ignorance 
to discern it, they do not crucify the Lord of Glory afresh ! And 
let His disciples beware, lest, in tossing the Bible and its precious 
truths into the arena of political controversy, they violate that 
injunction and warning — •" Give not that which is holy unto the dogs, 
neither cast ye your pearls before swine, lest they trample them wider 
their feet, and turn again and rend you" 

If, your Honors please, religion does not need the assistance of 
Pilate, and wherever religion organized in any church has sought or 
consented to receive any alliance with the civil power, it has cor- 
rupted her purity and shorn her of her strength, and it will be so to 
the end of time. It was a remark of that celebrated and philo- 
sophic observer of society in America, De Tocqueville, that the 
thing that first struck him, when he landed on the shores of these 
United States, was that in a country where all religion was divorced 
from every connection with the State, there was a religious earnest- 
ness settled upon every face, and religious zeal burned in every heart. 
And Dr. Dollinger, a Roman Catholic writer, in a work on The 
Church and the Churches, or the Papacy and the Temporal Power," in 
reference to this very question of the divorce of religion from the 
schools, denounced it as godless and atheistic ; nevertheless, most 
unconsciously betrayed himself into an acknowledgment that 
nowhere in the world does the religious spirit so pervade the whole 
people as it does here, where it is free from the hateful and corrupt- 
ing embraces of secular power. He says : 

" All churches or religious communities have, therefore, com- 



Argument of Stanley Matthews. 2,83 

Minor et al. -v. Board of Education of Cincinnati et al. 

plete equal rights. Every person can join any sect he pleases, or 
belong to none, or found a new sect for himself. As in politics, in 
trade, and in all other occupations, so also in the domain of reli- 
gion, the freest competition prevails and produces energetic action 
and elasticity of Church organism, combined, however, with an 
indecorous grasping at and hunting after proselytes, which favora- 
bly contrasts with the passive tranquility and stagnation of State 
Church bodies. For their practical skill in spreading these nets, 
and drawing in the masses, the Methodists appear to excel all 
others, but so much the more are the others obliged to concentrate 
their forces, keep their followers together, and endeavor to procure 
new proselytes. The mere prospect of being supported in case 
of falling into distress, brings in troops of 'converts. The art of 
getting money for religious purposes is here carefully cultivated ; and 
for their talent in making money out of everything, and therefore 
also out of religion, the Americans certainly surpass all other nations. 
By exercising a kind of moral pressure that gives no offense, and 
leaves the appearance of voluntary action, they know how to incite 
crowds of people to bestow religious contributions — these, too. 
being persons who" if left to themselves, would give nothing. 
Their success in this way is truly extraordinary." 

Judge Hoadly alluded to a circumstance in the life of Dr. 
Lyman Beecher, strongly illustrative of this. Up to 1819, your 
Honors may remember, in the State of Connecticut, the Congre- 
gational churches were supported by a tax imposed upon and paid 
by all citizens, and agitation was gotten up for the purpose of 
repealing that enactment, and the same outcry was made there 
then, as is made here and now, in reference to the exclusion of the 
Bible from the common schools] that it was an atheistic attack 
upon religion ; and it was supposed that when that law was repealed 
religion would go to the dogs ; that there would be no more of it ; 
that it was a fatal attack, a deadly assault. And now hear how Dr. 
Beecher records his sentiments on page 452 of his autobiography : 

" I remember how we all used to feel before the revolution 
happened. Our people thought they should be destroyed if the law 
should be taken away from under them. They did not think any- 
thing about God — did not seem to. And the fact is, we all felt 
that our children would scatter like partridges if the tax law was 
lost. We saw it coming. In Goshen they raised a fund. In 
Litchfield the people bid off the pews, and so it has been ever 
since. But the effect, when it did come, was just the reverse of the 



284 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et at. 

expectation. When the storm burst upon us, indeed, we thought 
we were dead for awhile. But we found we were thrown on God 
and on ourselves, and this created that moral coercion which makes 
men work. Before we had been standing on what our fathers had 
done, but now we were obliged to develop all our energy." 

It is said there are hundreds and thousands of children in this 
goodly, this Christian city, that have no chance or opportunity for 
being educated in what my friends on the other side call " the ele- 
mentary truths of Christianity," not even in a knowledge of that 
" broad Christianity," unless it can be given to them by a perusal 
every morning, by the teacher, of a few verses out of the Bible in 
the- common schools. I say, if it be so, it is a lamentable confes- 
sion of great lack and neglect of duty, not on the part of the State, 
but on the part of the Church, meaning by that the invisible body 
of true believers who are, as they believe, to create the Kingdom 
of Heaven upon earth. 

It is said they are in the by-ways, lanes and alleys. And can 
they not be reached there ? Can not the Church send out its minis- 
ters ? or are they too busy, day after day, in their studies, preparing 
to dole out dogmatic theology Sunday after Sunday, to the tired ears 
of their wearied congregations? Can not they send out their Sun- 
day-school teachers? Can not they send out their missionaries? 
Why, the command of the Savior was to go out into the streets 
and lanes of the city, and into the highways and hedges, and bring 
all in, bring them into the feast which he had prepared — this 
feast of fat things, of goodly things. Must we say that the Church 
has grown idle and lazy, and can only hobble on its crutches, and 
therefore that our school directors must set. themselves up as teach- 
ers of religious truth ? No ! let the Church cease to depend upon 
any adventitious or external aids. Let her rely solely upon the 
omnipotent strength of the spirit of the Lord that is in it. Let it 
say to the State, hands off; it is our business, it is our duty, it is 
our privilege to educate the children in religion and the true knowl- 
edge of godliness. Don't let them starve on the husks of a broad 
Christianity. Let us give them that which is definite, and distinct 
and pointed, — the everlasting and saving truths of God's immortal 
Gospel. 

Don't teach them, " Be virtuous and you shall be happy," but 



Argument of Stanley Matthews. 285 

Minor et al. v. Board of Education of Cincinnati et al. 

" Believe on the Lord Jesus Christ and thou shalt be saved." Now, 
I' say, and I say it with all due humility, as one not called upon to 
instruct, but, nevertheless, to say what is in me to say — let the 
Church say : Here is our field ; it is white to the harvest ; here is 
our duty; here is our mission; here is our work to evangelize, to 
save the lost and perishing crowd. 

Let her rise up in the full measure and majesty of her innate 
spiritual strength — let her gird her loins for the mighty task — let 
her address herself with all earnestness and heroic zeal to the great 
but self-rewarding labors of Christian love — let her prove herself 
by her works of self-denying charity, to be the true Church as Jesus 
proved himself to the disciples of John to be the true Messiah, 
when He told them, u Go and show John again those things which 
ye do hear and see ; the blind receive their sight and the lame walk, 
the lepers are cleansed and the deaf hear, the dead are raised up 
and the poor have the Gospel preached to them." Let her organize 
all her forces for a more determined and closer, hand-to-hand, 
struggle with sin and evil, of every form, and the misery and 
wretchedness, of which they are the cause. Let her ministers and 
missionaries not only proclaim from their pulpits " the unsearchable 
riches of Christ," but descending among the hungry multitudes, 
distribute to them the precious bread of life. Let them declare to 
the rich, and the educated, their duties, their responsibilities and 
their privileges, and lead them in person to the places where their 
work is to be done, and stimulate them by their example to do it. 
Let them inspire by their enthusiasm, and fire with their zeal, the 
indifferent and the slothful. Let them, by setting forth the beauty 
of holiness and the purity of " the truth as it is in Jesus," which 
is able to make us wise unto salvation, send the healthful and invig- 
orating influences of our holy religion through every social relation, 
and glorify the business and the pleasures of our daily and secular 
life, by consecrating them to the glory of our Father who is Heaven. 
Let them turn these streams of the pure water of life, welling up 
in the hearts of their followers, into the dark and pestilential recep- 
tacles, where ignorance, poverty, misery and sin are gathered, and 
breed disorder and death. Then the great and the good, the noble 
and the wise, in the unity of the Spirit and the bond of peace, for- 
getting those things which are behind and reaching forth unto those 



286 Superior Court of Cincinnati. 

Minor et al. •v. Board of Education of Cincinnati et al. 

things which are before, pressing toward the mark for the prize of 
the high calling of God in Christ Jesus, in one grand array will 
meet and wrestle against principalities, against powers, against the 
rulers of the darkness of this world, against spiritual wickedness in 
high places, and shall wrestle not in vain, for they shall be strong 
in the Lord and in the power of His might ; clad in the whole 
armor of God, their loins girt about with truth, and having on 
the breast-plate of righteousness; their feet shod with the prepara- 
tion of the gospel of peace, and above all, taking the shield of 
faith wherewith they shall be able to quench all the fiery darts of 
the wicked, the helmet of salvation and the sword of the Spirit, 
which is the word of God, praying always with all prayer and sup- 
plication in the Spirit. Then shall be hastened the promised time 
of the coming of our King when there shall be a new heaven and 
a new earth, wherein dwelleth righteousness — the holy city, New 
Jerusalem, coming down from God out of Heaven, prepared as a 
bride adorned for her husband, the tabernacle of God with men, 
where He will dwell with them and they shall be His people, and 
God himself shall be with them and be their God. 

But let them remember that to advance this glorious consum- 
mation the Church must throw away the sword of civil authority 
which some of her too eager and impetuous sons would put into 
her hands ; that the Kingdom of her Lord is not of this world ; 
that she must render unto Caesar the things that are Caesar's, and 
unto God the things that are God's ; that she must not permit any 
unholy dalliance with the solicitations of worldly power or advant- 
age, but keep herself unspotted from the world ; that her dominion 
is over the minds and hearts of men, and her victory achieved 
with spiritual weapons alone, by appeals to their reason, to their 
conscience, to the highest and best in their ruined nature, to be 
restored by the power, not of human laws, but of the Spirit of 
God ; and that in proportion as she becomes conscious of her 
origin and destiny, of the divine and immortal life she bears in 
her bosom, hid with Christ in God, and grows into the recognition 
of her mission and place in the work and history of the world and 
of eternity, she will dissolve all ties that bind her to secular influ- 
ences and the natural sphere of human interests and actions, and 
establish herself firmly upon the seat of her spiritual throne, whence 



Argument of Stanley Matthews. 287 

Minor et al. <v. Board of Education of Cincinnati ct al. 

shall silently but most potently issue streams of truth and goodness, 
wisdom and love, faith and charity, into all the channels of human 
thought and activity, to restore upon earth the Paradise of God. 

I have not, may it please your Honors, strength to continue. 
There is a world of things that crowd upon me to say, but I must 
forbear j but I can not close and take my leave of this case with- 
out saying that I owe my profound and sincere acknowledgments 
to your Honors for the patience with which I have been treated. 
I know that I have needed forbearance; I have not perhaps 
deserved it, but your Honors know the palliations of the case. I 
could not say less. What I have said, I know your Honors will 
believe me, I have said in the fear of God, because I believed it 
was the truth and the right. If I have erred, if I am wrong, I can 
only look to Him for pardon who is willing to extend it to all who 
humbly seek it. But I tell your Honors my heart is in this thing. 
I believe it to be a matter of the most vital, of the most moment- 
ous and profound importance. Whether I be right or wrong, it 
calls upon your Honors, it summons you to a very high, a very 
difficult and a very important duty. I shall make no appeal to your 
Honors. Your Honors know what your duty is, and I know you 
will perform it. 

Note. — The foregoing has been revised from the report of the 
argument published, at the time of its delivery, in the daily papers. It 
is, perhaps, not out of place, to say that it was made while suffering 
from physical pain, which prevented such verbal and formal preparation 
as the importance of the occasion demanded, and which, with other cir- 
cumstances, not necessary to allude to, led to some expressions and pass- 
ages which it has been thought best not to preserve in this more perma- 
nent form, and which, indeed, it would have been better not to have 
uttered. 

In their place I have taken the liberty of supplying such additions as 
seemed desirable to the development of the argument; otherwise it has 
been my aim to preserve accurately its identity, both in spirit and form. 



Argument of Rufits King. 2.89 

Minor et al. -v. Board of Education of Cincinnati ct al. 



Argument of Rufus King, 

Counsel for Plaintiffs. 



This is an issue, may it please your Honors, of the first mag- 
nitude ; not merely because of the intense interest it has excited in 
this community, but, in fact, throughout the land ; an interest 
which, in my judgment, the gentlemen who appear for the defense 
are greatly mistaken when they suppose it arises simply out of 
sectarianism. I believe it is a real, heartfelt, conscientious convic- 
tion, as strong, as deep, as abiding and as righteous as the feeling 
of either of my friends on the other side, that a great institution in 
this country is really at stake in this issue. But the question is one 
of importance and interest to your Honors, not so much upon this 
ground as it is as a matter of law ; and that is the ground upon 
which the case is to be decided. 

Now, the part I have to take in this case has been made 
somewhat peculiar. In the ordinary course of proceeding, the 
whole argument on both sides being before your Honors, it is my 
duty to reply to my friends who preceded me in the defense, and 
having done that it would be my duty to take my seat. 

But the counsel for the defense, not only the gentleman who 
preceded me, but all of them, have gone into a line of argument 
which, according to my opinion of the issue, is so remote, so for- 
eign, so wide of the point which your Honors have to decide, that 
if I undertake to follow the argument which the Court have now 



290 Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et al. 

so patiently, for four days, listened to, I should have to lose sight 
of all the consideration upon which my clients came into this 
Court. 

If this were a debating society, or a meeting at Pike's Hall, 
or, which I wish were the case, if your Honors were sitting here as a 
constitutional convention, I admit that the arguments of my friends 
on the other side were able; they were rich in learning, and I was 
glad that they came up to certain points that one of your Honors 
suggested and desired to be brought out, to show that the profes- 
sion was not unlearned in matters of such importance. 

But, taking the main points upon which the gentlemen have 
spent their force in the defense of the School Board in this case, 
what have they to do with the question which is now before your 
Honors ? 

The people of Ohio, in convention assembled, have adopted 
as part of their fundamental laws, and not simply of their funda- 
mental laws, but they have seen fit to frame and set it in their Bill 
of Rights, the law of laws, which precedes government, underly- 
ing and controlling all laws, and supplying your Honors with the 
motives upon which to interpret laws, a provision which this Court 
is called upon to interpret and apply to the action of the School 
Board in this defense. I will not repeat Mr. Webster's remark as 
to taking our bearings, but I read the concluding paragraph of 
section 7 of the Bill of Rights prefixed to our Constitution : 

" Religion, morality and knowledge, however, being essential 
to good government, it shall be the duty of the General Assembly 
to pass suitable laws to protect every religious denomination in the 
peaceable enjoyment of its own mode of public worship, and to 
encourage schools and the means of instruction." 

And right upon that, by superposition, apply these resolutions, 
adopted by the School Board of Cincinnati, November 1, 1869 : 

"Resolved, That religious instruction, and the reading of 
religious books, including the Holy Bible, are prohibited in the 
common schools of Cincinnati, it being the true object and intent 
of this rule to allow the children of the parents of all sects and 
opinions, in matters of faith and worship, to enjoy alike the benefit 
of the common school fund. 



Argument of Rufus King. 291 

Minor et al. v. Board of Education of Cincinnati et al. 

"Resolved, That so much of the regulations on the course of 
study and text books in the intermediate and district schools (p. 
213, Annual Report,) as reads .as follows: 'The opening exercises 
:n every department shall commence by reading a portion of the 
Bible by or under the direction of the teacher, and appropriate 
singing of the pupils,' be repealed." 

It is not denied that those schools are established under that 
Constitution. There, then, is the issue which it was very easy to 
approach if the gentlemen wanted to. The almost general con- 
currence of the three counsel in not approaching that question was 
not fortuitous; it was not by catastrophe, but it was by design. 
And may I be permitted to ask what is the legal and reasonable 
inference, what must have been the design in carefully avoiding the 
discussion of this issue ? The learned counsel who closed the case 
for the defense, after a most impressive allusion to his difficult and 
peculiar position (in which he has my profound sympathy), pro- 
ceeded to administer a rebuke to somebody for having converted 
this court of law into an arena of theological, doctrinal and relig- 
ious — or perhaps it might have been better to say irreligious — 
discussion ; and there, again, in so far as the rebuke applied to his 
colleagues, I sympathize with the gentleman ; for having listened 
with the most profound attention to his two colleagues who 
preceded him in the discussion, J was really at a loss to know- 
where the case was drifting, and where we were to end. 

We seemed to have cut loose from those rules which we gen- 
erally go by here, and the affair seemed to have resolved itself into 
a revision of the Constitution. The gentleman who preceded me 
thereupon called for the previous question, and he read the resolu- 
tions adopted by the School Board, but straightway following the 
example of his two colleagues, he forgot the question, which I 
have just presented to the Court and which I believe to be the true 
issue in the case. But then he was pleased not to forget, in turn- 
ing off into those intricate regions into which the defense has 
wandered, to turn upon the plaintiffs whom we have the honor — 
and I may add, if it please .the Court, nothing but the honor — to 
represent in this case, and rebuke them in tones somewhat angry 
and loud for making this sacred book — I took down the words — 
"the football of parties; and stirring up schism in society." May 



292 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

it please your Honors, these are bold words, " brave words, my 
masters;" but did the gentleman forget who began this thing, who 
threw the first stone? Where did this " football " come from? 
And who started this schism in society ? I commend the question 
back to his consideration. 

He then went on to rebuke my clients again, that instead of 
leaving this matter to the people — I beg leave just here to interpose 
a question : how, until the Court has decided the law, are the people 
to settle the points which it has taken these profound pundits so 
long to bring out ? If the people have to consider the whole mass 
of curious research which has been here presented, they will have 
a very steep time of it before the next Spring election. He 
rebuked my clients, I say, for not having left this matter to the 
people, and we are taunted and shamed for coming into this Court. 
Why, what would the gentleman have ? Does he propose now to 
turn round and remind us of those principles which he and his 
colleagues have scouted for the last three days as a part of popular 
government ; that we should practice the Christian grace of 
humility, and having been smitten upon one cheek, we should 
turn the other also ? Were we to lie down and be kicked till the 
breath of life, and, as we believe, of government, was taken out 
of us ? . 

There is an inconsistency here between the gentleman's argu- 
ment and his practice. He does not hold to his own doctrine, and 
he has shown us a very poor example of that Christian maxim 
which teaches that we should take the beam out of our own eye 
in order that we may see the mote in our neighbor's. 

The next proposition I understood my friend to lay down to 
the charge of my clients was, that this was a very small matter. 
Before his argument was concluded, he made it a very large matter, 
and, if I recollect, fully vindicated the plaintiffs in coming into this 
Court for relief. If this was a very small matter, why did not the 
School Board leave it alone ? Why did they set this " football " in 
motion, and create this schism in society, when there was not a 
complaint to ripple the smooth surface of the summer sea, upon 
which the schools in this city were sailing ? Precepts and practice 
do not go together in this case. Why was this doubling and shift- 
ing about this matter ? I ask again, who began it ? 



Argument of Rufus King. 2g$ 

Minor et al. <v. Board of Education of Cincinnati et al. 

I come now to a more serious matter, in which I shall have 
controversy with my friend who last addressed the Court on the 
other side, and that is in regard to this : The very first words of 
this resolution, the forefront of it, prohibit religious instruction. 
Now, it is immaterial what instruction, and whether any religious 
instruction, was before given in the public schools. It is enough 
for the purpose in this case, upon the principle of quia timet, which 
the case in the Tennessee Reports, referred to, lays down distinctly 
as a ground of relief, it was sufficient on this ground for these 
plaintiffs to come into court prospectively ; even if there never had 
been a scrap of religious teaching in the schools, there was a viola- 
tion of the Constitution threatened, which cut off our population 
from the benefits of the very ground-work of religion and govern- 
ment. It suffices for our case, that whereas the Constitution 
enjoins religion as a means of instruction, this resolution declares 
there shall be none, squarely and diametrically. It violates the 
Constitution totide?n verbis, for whereas the Constitution says relig- 
ion shall be taught and encouraged, the Cincinnati School Board 
says it shall not, and there is a square issue. 

Now, the learned counsel, conscious, and pressed by this very 
awkward predicament into which part of his clients — for it seems 
they are not all of the same way of thinking — have fallen, and 
appearing here in direct opposition to the terms of the Constitution 
and the fundamental law, ingeniously, and, as I thought, very 
subtly, threw out the intimation that it was admitted that there had 
been, with the exception of reading the Bible, no religious instruc- 
tion in the public schools, using what they did not find in the reso- 
tion, a substitution of the words, " formal instruction," thereby 
conveying to your Honors the idea that the first resolution was 
merely a blank cartridge, that there was nothing in it ; it was a 
poor, harmless sort of thing, and therefore your Honors would 
confine your attention to the second resolution, which prohibits 
this reading of the Bible the first thing in the morning, and let this 
first resolution pass as a matter of no consequence. But the evi- 
dence pricks the air out of this bubble. 

The gentleman turned and asked if we referred to McGuffey's 
Readers as containing religious instruction ; I said yes, and, may it 
please the Court, McGuffey's Readers are enough for my case. 
20 



294 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

They were, fortunately, put in evidence, and your Honors will find 
marked on the blank leaves of these books the contents precisely 
defined of what is denominated by all dictionaries, lexicographers 
and religious men, religious and moral instruction ; and your Honors 
will find- it very good reading, consisting not merely of extracts 
from the Bible, but some most beautiful lessons of religion and 
morality, prepared by Mr. McGuffey, who all his life has been an 
instructor of youth, and perhaps one of the best in the country to 
compile such books. He has compiled, arranged and adorned that 
instruction, with strict reference to this provision of law, for laying 
the foundation of religious character, virtue and morality broad and 
deep throughout the country. 

Now, just here is the point I quarrel with. Your Honors 
were very quietly asked to put no stress whatever upon this resolu- 
tion. But, mark you, that resolution in all the breadth of those 
words, and certainly more comprehensive words could not have 
been adopted, has to go into the hands of over four hundred other 
judges, the teachers of the public schools in this city. 

I ask you, in the sense in which any teacher of Cincinnati is 
authorized and enjoined to put upon the terms used in that first 
resolution, whether it is possible to have the name of God men- 
tioned, much less explained, in these public schools. No, your 
Honors, that resolution, not only in the German schools, to which 
we have had two or three references here, and which I was sorry 
to hear, for I have a high respect for them, but in any of those 
schools where these teachers go, I say is a command to them that 
you shall not teach the name of God in yotir schools. For that is 
the foundation of all religion, even in the sense in which my 
friends on the other side were compelled to concede, and upon 
which they gave up some sort of a recognition of a God. Thus it 
was hoped to save this first resolution; but the argument stultifies 
the School Board, and will not and can not stand. The School 
Board, when they passed that resolution, meant something — some 
sort of religious instruction. 

They meant to recognize some sort of religious instruction as 
now prevailing in the public schools. There it is,, and can not be 
evaded. For religious instruction, the reading of religious books, 
Including the Bible, is prohibited. But something more was 



Argument of Rufus King. 295 



Minor et al. -v. Board of Education of Cincinnati ct al. 

intended than the Bible; for that book being merely "included," 
there must have been more to include it, on the axiom that the 
part is less than the whole. Some other religious instruction than 
the Bible lesson must, therefore, have been in view, to be sup- 
pressed. Now, what was it ? It certainly could not have been 
the spelling books or the arithmetic, although I think one gentle- 
man did argue that there was some religion even in the multiplica- 
tion table. I do not think the learned counsel had in his eye the 
geography or history taught in the public schools, for I do not think 
the kingdom of heaven is laid down in the books on those subjects 
used in the public schools. Then it comes down to this, that either 
the School Board were a set of fools in passing that resolution, or 
they must have meant one of two other books, which are the only 
ones left in the list, and that is the copy-books or McGufFey's 
Readers, and I leave that to be decided by the gentlemen on the 
other side, and also by the claitqeurs from whom I heard a little 
laugh the other afternoon, with regard to the McGufFey Readers, 
which reminded me of the distich of Pope, concerning a class — I 
omit the epithet — who 

" Still have an itch to deride, 



And fain would be on the laughing side." 

The Court has heard the answer in this action, and the 
defense which it sets up, and the argument, and I submit that if 
these resolutions, which it has been somewhere intimated are the 
tocsin of a new era, should prevail, and some of these — I will call 
them Pagans for the sake of respectable association, for it embraces 
Cicero and a great many respectable names — if some of this new 
progeny, whose instruction is to be confined to reading, writing and 
ciphering, should, at some future and distant time, like Macauley's 
New Zealander on the ruins of London, be prowling about the 
archives in this Court House, and should find no fragment of the 
record in this case remaining, save that answer and defense, I submit 
'that they would not dream that the people of Ohio had any such 
lav/ upon their books as that clause just read from the State Con- 
stitution. The true issue has not been met. 

The gentlemen went off into many things unpleasant, not 
only because they were irrelevant, but because the purpose of them 



2cj-6 Superior Court of Cincinnati. 

Minor ct al. -v. Board of Education of Cincinnati tt al. 

seemed to have more significance than appeared upon their face. 
One of my friends, for example, referred to this letter of Dr. Bel- 
lows, and the fact that Dr. Bellows held up the Bible as the flag of 
Protestantism ; and he made use of an expression I regarded as 
unfortunate. "That flag," said he, " must come down." An 
unfortunate expression, because its association with General Dix's 
orders upon a certain occasion about pulling down the flag might 
have occurred to his hearers, and therefore it was better not to 
have been brought into this connection. Then, again, there was a 
little repertory of scandal in regard to Franklin, Madison, Wash- 
ington, old Dr. Johnson, and a great many other good men. 

If the abuse of a thing is to be the argument for its abolition, 
I suppose we shall have to abolish the freedom of the press \ for 
though certain firms among booksellers may print only fifty copies 
of a certain sort of thing, still copies exist in some repositories here 
and there. 

Here, too, was this matter of the first lesson of the day in the 
public schools, which I venture to say that no man who has wit- 
nessed it, who was ever present at the opening at one of these 
schools, and saw these children, fifty up to sometimes as many as 
three hundred, assembled in a single room, all hushed, silent and 
reduced to the most perfect order, and in the most fervent manner, 
either listening to the reading of the teacher, or, what is more 
common, joining responsively in that same exercise which my 
friend insisted upon so strongly in his church at Glendale — no one, 
I say, who has visited the public schools and listened to those exer- 
cises, could find it in his heart to quarrel. But it is here held up to 
reproach as an act of worship. 

Reading the Bible and singing the chants, which is often done, 
are held up here as an act of worship, when to any man who 
knows anything about the matter, it is perfectly understood that 
the intention is, by these exercises, to bring the school into a quiet 
frame of mind and attention which lasts throughout the day. And 
I venture to say that there is hardly an exercise which the children 
regard with so much pleasure as that. But my friends call it per- 
functory, and they call it "dog-trot"; but if they would only take 
up their dog-trot and go to the schools some morning, they will find 



Argument of Rufus King. 297 

Minor et al. -v. Board of Education of Cincinnati et al. 

this exercise to be beautiful and profitable, and such as could be ill 
dispensed with. The attempt to censure it as worship and illegal, 
is a perversion of words. Worship is adoration. 

Then there is another thing which Mr. Matthews has defended 
as a legal and proper distinction. Whereas, your penitentiary ana 
houses of refuge and reform schools, may have, and must have, 
the Bible read to them, these children of the public schools have no 
such legal right ; and it comes down to this, that no child in Ohio, 
unless he becomes wholly reprobate, has the right by public author- 
ity, to have the Bible or religious instruction. That' is shutting 
the door after the horse is stolen, with a vengeance. 

There were made here some curious critical remarks in regard 
to the authenticity of the Gospels, but what have they to do with 
this case ? They can not change the law. I do not pretend to be 
learned, and there is such a diversity of opinion in matters of that 
kind that I do not wish to enter into discussion, for a great deal, 
perhaps, as about most things, can be said for both sides. I will, 
therefore, say nothing, except that Dr. Davidson, whose book has 
been referred to here, is not good authority, and is not so recog- 
nized. If I am not mistaken, the King James version is recognized 
now, by all scholars of all sects, as the best translation. It may 
not be entirely perfect, because nothing of that kind can be. 

Now, in regard to the canon of the Gospels. I think that 
while Mr. Stallo is correct in stating that the canon was not estab- 
lished until about A. D. 150, it would lead to a wrong idea to 
suppose that the Gospels were not generally recognized as authentic 
from a period within twenty years from the death of our Savior. 
They were not collected in the canon for perhaps one hundred 
years later, but their authenticity was recognized. Nevertheless, 
the authenticity of that book is better established at this day than 
any other book of ancient times. 

We come now to the point so zealously pressed by the first 
two counsel who addressed your Honors for the defendants, the 
abuses of religion. 

Religion, under the name of Christianity, has been held up 
here for four or five mortal hours and choked until it was black in" 
the face, and for what earthly purpose ? What is there which has 
not been abused ? God knows that if the abuse of a thinp- is a 



298 Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et al. 

sufficient reason to abolish it, we had better begin by abolishing the 
steam engine, for the abuse of it is most shocking ; and it seems 
that all the laws of Congress can not prevent it. But who ever 
heard that the abuse of Christianity was an argument against it ? 
I can not pretend to' be much of a Christian. I do not belong to 
any church, in the strict sense of the term, but in my judgment and 
belief, and, I think in the judgment of any fair mind, profoundly con- 
sidering the whole length, breadth, height and depth of the history 
of the Christian religion, the most powerful evidence of its divine 
character, is that it has been able to carry the whole load of the 
abuses and outrages that have been perpetrated in its name. There 
is a very pertinent story in Boccaccio in reference to this which my 
friends may read, if they desire. 

Where, in all history, can we find another system which has; 
stood for five hundred years against such assaults? Christianity has 
lived and strengthened, and is yet progressing in a manner that indi- 
cates, in another century, the whole world will rejoice in it. 

I thought that just here Mr. Stallo was guilty of a little ingrati- 
tude in thus holding up the abuses of Christianity, for had it not 
been for the abuses of Christianity, he would not have been able to 
come over here from his native land and enjoy with us the liberty, and 
happiness of the institutions of this country. We know it was the 
abuses of Christianity which settled that belt of territory along the 
Atlantic coast, and which led to these mighty institutions which we 
have attained. For had it not been for the grace of God in plant- 
ing that little colony along the Atlantic coast, this whole land might 
have been living under the flag of the Bourbon or the tri-color of 
France. 

We know that the French were here ahead of the English, 
and occupied this land clear up the St. Lawrence and lakes, 
down these Western rivers to the Gulf of Mexico, and that they 
held this Western country in a vise, but it was wrested from them, 
by the energy of William Pitt, and converted into a land of freedom, 
under religious instruction in free schools, and religious institutions, 
living under the tree of liberty, in happiness and prosperity. I 
hope my friend Stallo will not pluck a leaf from that tree, but let 
it grow, and water its roots rather than kill it. 

There was a point discussed by Mr. Stallo first, and then by Mr, 



Argument of Rufus King. 299 

Minor et al. -v. Board of Education of Cincinnati ct al. 

Hoadly, questioning the tendency of religion to elevate society, 
which I thought more germane to the case, because it is a justification 
of our fathers for putting that word religion into our Constitution, 
I was surprised that my brother Matthews should concur in the 
point. I was surprised at my two brothers who preceded him, 
standing up here to deny the influence of Christianity upon modern 
' civilization, and as its foundation. 

Draw a line across the track of history just there at the death 
of Christ; survey both sides of that line, and what do we see? 
The blackness of darkness beyond it, times not fit to record ; a'nd 
yet if. you turn this way all is bright and brighter and still brighten- 
ing as you go on. My friends, I know, will refer all this to physi- 
cal and material causes, and talk most learnedly with regard to the 
influences of exact science; but where, I ask, do the sciences come 
from ? From that equality of the human race which Christ pro- 
claimed and was the first to establish upon a just footing upon this 
earth. It came from a system of doctrine, at first extreme, but the 
abuse did not last long. 

I may be somewhat rusty, as were my brethren, in regard to 
their quotations, but your Honors will recollect that the early 
Christians, almost immediately after the establishment of Christi- 
anity, sold their possessions and parted the proceeds among all men, 
according to their needs, and you will recollect that the first thing 
we hear of anything like an asylum for widows, was that quarrel 
between the Hebrews and the Greeks about administering to the 
widows, in which the Hebrews got the advantage, and the Greeks 
complained. Then there was that magnificent speech of St. Paul 
on Mars Hill, in which he confounded both Epicureans and Stoics. 
And what did he say to them ? He preached that God had made 
of one blood all nations upon all the face of the earth. So it was 
that out of the Divine preaching, example and practice of Him who 
was more than man, came that equality before God, which was the 
first genuine basis of democracy in the world, which put all men 
upon an equality ; and the result of which has been little by little 
to raise the lowly masses, the poor and the downcast, out of the 
degradation which lies beyond that time to which I have just 
referred, up, and up, and up, until now society has got the whole 
force of the human family arrayed -in this advance of science and 



300 Superior Court of Cincinnati. 

Minor e al. v. Board of Education of Cincinnati et al. 

art, and material improvement, if you please, which the gentlemen are 
pleased to regard as self-created, but which comes out of the develop- 
ment of the whole human race, which the Christian religion first began 
It is hard to quarrel with the Church in regard to this matter, 
for it must be said, for the Roman Catholic Church, that it has 
been the bridge of learning, and not merely a bridge, but a great 
instrumentality by which religion then, as now, lifted up arid took 
its ministers out of the lowly classes of society. And it was from 
them all intellect, art, and science first received their start in the 
awakening in the Middle Ages known as the Renaissance, My 
brother Hoadly in disparaging the influence of Christianity upon 
civilization, was very unfortunate in his illustrations. He took as 
his model prince, of all time, that blood-thirsty tyrant, Marcus 
Aurelius (for there never was a bloodier-minded gentleman on the 
face of the earth), as Lord Byron might have said: 

" As mild a mannered man. 



As ever swore a prayer, or cut a throat." 

There was that gentleman lolling philosophically, to be sure, 
in Rome, and if you take Gibbons' account of his empire, it enjoyed 
great prosperity ; but he was a bloody persecutor. He brought the 
venerable St. Polycarp hundreds of miles to amuse the citizens in 
one of their holidays — a man ninety years of age, as pious, and good 
a man as adorned history, and as far superior to the wretch who 
persecuted him as to Nena Sahib. Having compelled him to sub- 
mit to three days' torture, to swear by Jupiter, or to suffer death, 
he cast him away to the wild beasts, to gratify the brutal popu- 
lace, who having no public schools, we suppose these amusements, 
the panem et circenses, naturally had to be substituted.* 

There was another thing about which my brother Hoadly was 
mistaken. He referred to the Roman Code. Why, who published 
the code but Justinian, the Christian emperor ? and I undertake to 
say, that excepting here and there fragmentary passages, which are 
brought from the old age of the Roman law prior to Adrian, which 
by many was considered the golden period of the Roman laws, the 
corpus juris chilis is no Pagan code. But where did it come from ? 

*See note at close of argument. 



Argument of Rufus King. 301 

Minor et al. v. Board of Education of Cincinnati it a!. 

The great majority of the edicts of the praetors, and the responsa, 
as well as the rescripts, found in the Roman Code were from 
Christian lawyers. That is to say, they were as good Christians 
as lawyers generally. 

And now, as to one part of this subject, I think the gentlemen 
will surrender. I mean in regard to the influence of Christianity. 
I should like to ask what was the condition of woman in this world 
prior to that era? You can not open a history of that brilliant and 
intellectual people, the Greeks, where any woman of culture can 
be found named in any but, a class whom it is not fit here to 
mention. 

They were slaves. They were born slaves, and kept slaves ; 
and so""they are to this day in every land where Christianity does 
not prevail. I need need not enter into any panegyric upon women. 
They now speak for themselves. Then the ages of chivalry — 
from what did they derive their inspiration but woman thus uplifted ? 

And now, if it please the Court, I turn away from these con- 
siderations, so persistently argued by Messrs. Stallo and Hoadly, 
with this one remark — I am not sorry that they have gone into this 
line of argument, for it has enabled your Honors to see the animus 
of the resolutions. Your Honors now see what these resolutions 
do not disclose on their face, what really is the motive of the men who 
passed them. You have it now. You can see just what the four 
hundred teachers of Cincinnati are going to interpret as the light in 
which they, acting up to these orders from their superiors, may 
teach and lead your children ; for here are Messrs. Stallo's and 
Hoadly's speeches in which Christianity is denounced from right to 
left, from beginning to end, as a humbug; and of such teaching we 
say unbelief, materialism, and sensualism are to be the result. And 
the people, too, will have an opportunity of seeing from these 
speeches what this movement really means, all this specious argu- 
ment to the contrary notwithstanding, and they show beyond ques- 
tion the wisdom of the Constitution, and the wickedness of these 
resolutions. 

In regard to the staple of the argument of my friends on the 
other side, there seems to be a concerted effort to escape the conse- 
quences of these very rash and ruinous resolutions, which the coun- 
sel feel are in violation of law, by attempting to throw upon the com- 



302 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

plainants here the wolfish charge of muddying the stream. We are 
oppressors, forcing the Bible down their throats ! We are secta- 
rians, they the oppressed ! We are the guilty ; they the injured. 
But, if I may be permitted now in a few words — for I can 'not 
undertake to follow my friends through the whole of their argu- 
ment, away off into these foreign regions, and thus he diverted 
from the real issues of this case — if I may sum up what I conceive 
the essential fallacies running through the whole argument of the 
three gentlemen, it is this, — that they have been pleased to turn 
upon religion, as a sect ; and as though religion were asking some- 
thing from the State ; whereas, in point of Fact, it is the State here 
asking succor from religion. And then, again, this difficulty — and 
I don't wonder, after this confession of Mr. Matthews about the 
Holy Church, that there is but one single step to carry him over — 
the idea that there is no religion outside the Church. Where did 
he get that idea ? To what sect did the Holy Jesus belong ? The 
Bible sectarian ! What sect owns the Bible ? Does the gentleman 
mean to say that the Catholic does not regard the Bible as his book, 
when it is the boast of his Church that it preserved and brought it 
down to us ? 

The whole thing is a fallacy from beginning to end, and turns 
upon the broad palpable mistake that religion is seeking the State, 
when on the contrary the State is seeking religion for the good of 
the public, not for the safety of souls ; and that is where my friend 
Matthews fell into deep error, and struggled like a strong man, as 
he rs, in a morass. Entertaining the doctrine that he spoke of yester- 
day, I do not wonder at it, and his trouble must be great. But all 
these three gentlemen attempted to establish their defense by 
denouncing the Bible as Protestant and sectarian. If your Honors 
please, I might pass this portion of the argument. I might, for 
all purposes of this case, admit both propositions. Everybody 
ought to understand perfectly well that nobody in these schools 
reads King James' version, or any other Bible, unless he chooses; 
because the resolution of 1842, in the first place, gives him absolute 
exemption from any Bible whatever; and then the rule of 1852 
gives him free choice, if he wants the Bible. Nobody is con- 
strained. No conscience, is touched. There is freedom for all. 

I admit that there is in the answer in this case an attempt to 



Argument of Rufus King. 303 

Minor et al. -v. Board of Education of Cincinnati et al. 

raise a point here ; but your Honors will find upon looking into the 
pleadings that it does not answer. The petition charges, in terms, 
that the rule of 1842 expressly and absolutely exempts all children 
whose parents desire it from hearing or reading the Bible, and that 
the rule is in full force. The answer is cautiously drawn ; it does 
not come up to the requirement of the Code ; it does not deny; it 
avoids — I will not say equivocates — by saying that as to this matter 
they are not informed. Now we have informed them by putting 
on file a transcript of that rule of 1842 ; and it is in the record. 

But in order to shew that there is no ground for the pretense 
that this rule is obsolete, — it may be that it never was invoked-, 
because there never was a man bad enough to go to the school-house 
to tell the' teacher of his children not to let them hear or read the 
Bible,: — to show that it is not obsolete in point of fact, here are 
two quotations from the reports, published by law, in 1852 and 
1863, proclaiming that the rule is still in force, and complaining that 
although the School Board have for twenty years sought to have the 
obnoxious passages pointed out in any of the text books, up to this 
day it never has been answered, for the reason that I will presently 
mention. 

There can be nothing made therefore in this case by denoun- 
cing the Bible as Protestant, or sectarian. By the rule of 1842 you 
need not, if you choe-se, have the Bible at all. By the rule of 
1852, you may have your choice, and the Mormon Bible could be 
read in the schools of Cincinnati if the parents desired it ; but I 
can not speak upon that subject with authority, as I do not belong 
to the School Board. 

As in regard to those two points, so also, all the three counsel 
persisted in perpetually confusing the idea of religion with mere- 
dogma ; as though there were no such thing as religion antecedent 
to Church, no such thing as religion pure of sectarianism. 

But here the gentlemen divided a little and fought each upon 
his own hook. Mr. Stallo set up a man of straw, and assumed 
that somebody or other — it certainly was not either of the three 
counsel for the plaintiffs — stated that Christianity was part of the 
law of Ohio. I suppose that Mr. Stallo must have made that 
point in his argument beforehand, assuming that some one on our 
side would take that position, but we disclaim any such proposition 



304 Superior Court of Cincinnati. 



Minor et al. v. Board of Education of Cincinnati et ah 



as that Christianity is part of the law of Ohio, except in the sense 
which Chief Justice Clayton so admirably marks out in the 
decision which Mr. Matthews read yesterday. 
I quote from 2 Harrington, 556 : 

ct This. is the true meaning of the English maxim as usually 
applied. It was never pretended that the common law punished the 
violation of every precept of Christianity. No judge of common 
law ever decided that he who did not to others as he would- that 
they should do to him, which is one of the most sublime of all the 
precepts of that religion, or that he that did not repent and believe 
in Christianity, was therefore liable to a penalty or punishment at 
common law. Indeed, in the very speech of Lord Mansfield 
already referred to, which was a noble and most successful effort in 
behalf of the Dissenters and the great cause of religious liberty, he 
says there never was a single instance, from the Saxon times down 
to our own, in -which a man was ever punished by the common law 
for erroneous opinions concerning rites or modes of worship. The 
common law of England, which is only common reason or usage, 
knows of no prosecution for mere opinions. For Atheism, blas- 
phemy, and reviling the Christian religion, there have been instances 
of persons prosecuted and punished upon the common law, but 
bare non-conformity to established rites and modes (of worship) is 
no sin by the common law. 

" The common law was, as Lord Coke expressed it in Sir 
William Herbert's case, 3 Rep. 42 b } 'the preserver of the co mmon 
peace of the land,' and therefore we find it punished outrages on or 
breaches of the peace of society, and also acts whose tendency was 
to disturb that peace. 

u The union between Church and State in England, by which 
the Christian religion became connected with the Government 
itself, induced a series of penal statutes to protect and prefer that 
religion as a part of Government itself. But, even in England, 
Christianity was never considered as a part of the common law, so 
far as that a violation of its injunctions, independent of the estab- 
lished laws of man, and without the sanction of any positive act of 
Parliament made to enforce those injunctions, any man could be 
drawn to answer in a common law court. It was a part of the 
common law ' so far that any person reviling, subverting or ridi- 
culing it might be prosecuted at common law,' as Lord Mansfield 
has declared, because, in the judgment of our English ancestors 
and their judicial tribunals, he who reviled, subverted or ridiculed 
Christianity did an act which struck at the foundation of their civil 
society, and tended, by its necessary consequences, as they believed, 
to disturb that common peace of the land of which (as Lord Coke 



Argument of Rufus King. 305 

Minor et al. -v. Board of Education of Cincinnati ct al, 

had reported) the common law was the preserver. The common 
law never lighted the- fires of Smithfield on the one hand, nor pre- 
ferred the doctrines of infidelity (which is proved by all history to 
he in character not less intolerant than fanaticism) on the other. 
It adapted itself to the religion of the country just so far as was 
necessary for the peace and safety of civil institutions, but it took 
cognizance of offenses against God only when, by their inevitable 
effects, they became offenses against man and his temporal security." 

So much for that point. Mr. Hoadly then set up another 
John Doe and Richard Roe, to-wit, Church and State, for us in 
Ohio long since dead and buried, but I don't care about answering 
that. He also advanced the singular idea that if the State enters 
at all upon religious instruction, it must teach all religious truth, 
"the whole councils of God." This mistakes the object. He 
commits the palpable error of assuming that religion, morality and 
knowledge are sought by the Constitution not as essential to the 
State, but for the salvation of souls. And that is about as near as 
he could go to the idea of part of his clients. 

Mr. Matthews took pains, in several passages of his speech, 
to declare and set his approval upon all the various propositions 
which had been made bv his two colleagues, and without discrim- 
ination, as legitimate and applicable in this case. I do not know 
that the gentleman meant to make himself responsible for the full 
meaning of the words, and will therefore not hold him to it ; I do 
not think he did. His first great proposition, concurring with his 
colleagues, was that the Bible is sectarian, and therefore be 
proposed to hold your Honor (judge Storer) very strictly to your 
word, and I think your Honor conceded that if he would satisfy 
you that the reading of King James' version of the Scriptures 
is sectarian, you would decide to exclude it. And now, then, 
he proceeds to establish it thus: ' There are three great divisions 
of religious men, the Israelites, the Roman Catholics, and the 
Nullifidians — I will take the word Pagan back. He said these 
three and the Protestants are all equal ; mark that, if you please ; 
secondly, because that church, between whom and himself there 
stands now but one link to be supplied, because the Roman Catholic 
Church, holding it as a religious dogma — mark that again, if you 
please— that the reading of the Bible is a heresy and sin, and having 

/ 



306 Superior Court of Cincinnati. 

Minor ct al. -v. Board of Education of Cincinnati et al. 

the right so to do, he made the proposition that they had the right 
to lay down as a dogma that it is a heresy and sin to read, or suffer 
others, in the exercise of private judgment, to read the Bible ; 
therefore the Bible is sectarian in the public schools in the sense of 
the Roman Catholic, and takes them under the peril of damnation, 
and they must protest against its being read by anybody, Roman 
Catholic, Protestant, Israelite, or Nullifidian. That is the doctrine. 

Now, what do your Honors think of that ? That is equality, 
with a vengeance. We all started equal, but it comes to this, that 
these gentlemen have a right to turn round and say you shall not 
read the Bible in the school-house, and by that same token all the 
rest of us have got to assent to. the doctrine, because a Catholic 
will be damned if he allows you to do it. And if so, when that 
time comes predicted by the gentleman, when the Roman Catholics, 
having the majority, and controlling the schools as they please, 
unless we can hold them by the interposition of this court, and 
when the Mass shall be celebrated and the worship of the Virgin 
Mary shall be established in the public schools, why, as a matter of 
course, you will be estopped from reading the Bible at home. That 
is what I call a religious establishment built upon Mr. Matthews' 
argument; for this is exactly what it is, and you can not make any- 
thing else out of it. Every one, therefore, has a right 'to be edu- 
cated upon a precisely similar implicit yielding of the public schools 
to his dogma, just as much as to the dogma of the Roman Catholics. 
The Israelite, who believes in his Talmud, or he who believes he 
will be damned unless we read the Book of Mormon, must' have 
their consciences relieved likewise ; and so we shall come to be 
like that philosopher who reads all and believes all of them, and 
believes they are all alike ; and thus we perish in a general cata- 
clysm of conscience. But the whole point is imaginary. And so 
is this difficulty which has been raised as to "private judgment." 
For, whatever be the rule of the Roman Catholic Church in that" 
matter, it is undeniable that their people, in this country at least, 
freely have their Bible, and read it too. 

The next great central proposition of Mr. Matthews' argu- 
ment is this: that you shall not have religion in the public schools, 
because it is historically a fact that the alliance of religion and State 
has been fatal to both. If he means Church and State, yes; other- 



Argument of Rufus King. 307 

.Minor et al. <v. Board of Education of Cincinnati et al. 

wise, no. One hundred years of American history holds up its 
hand in protestation against that argument as untrue. It can not 
be maintained. We stand alone,— I admit it. There has been 
nothing like the American common school, associating religious 
and moral with intellectual education, as a substitute for Church 
and State, in the past history of mankind. American history, I 
admit, stands alone. I say that this argument, no doubt the result 
of much thought and profound conviction, only satisfies me the 
more that my friend is a strong man struggling in a morass. 

Then came what I was very sorry to hear; it is as hard and 
cold as Lycurgus. There is a passage in this answer which I 
desire to read to the Court again : 

"These defendants believe it to be true that a number of 
children that are educated in the common schools receive no relig- 
ious instruction except that communicated in said schools." 

What in the name of heaven is it proposed to do with these 
children ? Why, says the gentleman, let their parents take care of 
them ; let them go to Sunday school ; just as the maid of honor, 
who was told the people had no bread, said to the queen, " why 
then don't the poor -children have cake and marmalade ? " 

And then my friend launched out into a tirade against the 
clergy and churches, which I thought was very extraordinary in an 
elder of a Presbyterian church, and which, I believe, the General 
Assembly will not allow. Go to their parents — parents admitted 
by the answer in this cause to be utterly derelict ! Why did not 
the gentleman say, go to the devil ? The argument begs the ques- 
tion. It is too broad; it proves too much. If you can send these 
children home for their religion and morality, which is the peculiar 
jewel sought by the State of the public school system, why not 
send them back for their reading, writing and ciphering? What 
will become of your public school system ? What becomes o£ 
your tax ? Why am I bound to pay taxes for the teaching of 
other people's children in mere reading, writing and ciphering, 
when it only makes a little rascal of a boy twice as sharp as he was 
before, thrice the greater adept in vice and villainy, while it gives 
me no protection for my throat. And this is what the system 



308 Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et al. 

means when instruction shall be divested of its morality and 
religion. 

A little difficulty takes place just here in regard to this matter 
of parents. Mr. Matthews insists that my colleague, who preceded 
him in the argument, advanced the proposition that the State has a 
right to force the child away from its parents into schools, and 
then impose upon him the teachings of religion. What my col- 
league stated — for I took.it down — and what we maintain, is that 
the State has a paramount interest in the virtue and knowledge of 
its members, and that prerogative belongs to it ; and that the child 
also has a right of conscience which is superior to the right of the 
parent. I refer to 4 Wharton, p. 11. 

I will close this matter with an inquiry. The law of this 
country having got rid of this terrible curse which they denounce 
so furiously — churches supported by the State — where, I ask," are 
the churches and Sunday schools to which the poor and outcast are 
to go ? Where are the pews these people shall sit in ? Where 
are the clothes which we know the poor man wants when he sends 
his children to Sunday school or church ? Can Mr. Murray Ship- 
ley, and the other benevolent gentlemen who ' labor with him, 
undertake to accommodate, in their house forty-five by eighty feet, 
the thousands of those little outcasts who are now to pick up morals 
and character by charity? They will have a very large house full. 

I now propose to go to the direct and only question before the 
Court. Has the School Board violated the law ? Here arises a 
point about which there has beeli the greatest imaginable misunder- 
standing, not only in the argument of counsel, but out of court. 
It has been assumed here and everywhere that the Bible and 
nothing but the Bible is in controversy in this cause. That is not 
the issue. The Bible is only an incident in this controversy, and 
for the , purposes of this case it might be conceded, though I do 
not concede it, I only say it might be conceded,, that the School 
Board, in the exercise of a proper discretionary power over text 
books, could direct it to be omitted. But the real question here is, 
whether under the law of Ohio the School Board can shut out all 
religious instruction. If so, the Bible and all is engulfed, and it is 
immaterial whether the reading of the Bible be discussed. Nor is 
there any pretense on our part, as insinuated by counsel, that this 



Argument of Rufus King. 309 

Minor et al. v. Board of Education of Cincinnati et al. 

Court can dictate what text-books shall be used In the public 
schools. What we say is, that even admitting the School Board 
has discretion in directing what text-books shall be used, there still 
remains in this Court the broad power of saying that they shall not 
exclude text-books or instruction which the law commands. The 
difference between the power of commanding the School Board 
what they shall do, and prohibiting what they may not do, is so fam- 
iliar to your Honors that it needs only to be mentioned to show the 
fallacy in Mr. Hoadly's argument on this point. 

The true issue, as I have stated, and the question for the Court 
to decide is, do these resolutions violate that provision of the Con- 
stitution which I began by reading ? And it is a question of law, 
not of theological doctrine and casuistry. The first aspect of these 
resolutions is that utter intolerance toward all but unbelievers, or if 
you please, Nullifidians, which Mr. Sage and Mr. Ramsey have 
both so fully depicted, that it is not necessary to say more about it. 
This resolution is not only intolerant, but it is in bad faith. 

To see its intolerance I ask your Honors to refer back to the 
history of the schools of this city, established just forty years ago, 
and always conformed and conforming in their instruction with this 
injunction of the Constitution. See how they have worked. The 
Bible was adopted at the beginning, and held ever since to be a 
proper text-book of morality and of religion, if you please in the 
4t broad" sense. The defendants knew this. 

No one ever questioned the reading of the Bible in school by 
his- neighbor's children, provided every child was excused whose 
parents objected. The only objection that ever was made was by 
Bishop, now Archbishop, Purcell, in 1842. He was then a mem- 
ber of the Board of School Examiners, and after the passage of the 
broad exemption secured by the resolution of 1842, he never com- 
plained, much less set up any such dogmas as those advanced by 
Mr, Matthews yesterday. 

This system of schools went on, and worked so admirably, 
with the additional rule made in 1852, that about the years 1857-8 
the Israelites of this city, who up to that time had been carrying on 
their own schools, keeping up a separate system, under the guidance 
of their own rabbis, saw no reason longer to keep up their own 
school system, and admitted that the public schools were good 
21 



310 Superior Court of Cincinnati. 

Minor et al. <v. Board of Education of Cincinnati et ah 

enough for them ; and one of their rabbis has been an active mem- 
ber of the School Board up to a recent period, and never, on any 
occasion, has there been any objection by 'them or by him to this 
terribly obnoxious violation of the rights of conscience. 

Down to the first of November last every one in this city was 
perfectly at liberty, because no one was or could be injured. There 
was a perfect equality; each had his rights, and nobody stepped 
upon the toes of any body else. Not a parent, Israelite or Catho- 
lic, complained to this Board, or brought a case of this kind to 
their notice. 

But all at once a very strange coalition of twenty-two gentle- 
men takes place, ten of whom were Catholics; and what I can not 
well reconcile with my knowledge of the School Board, is how ten 
Catholics got into that Board so suddenly. 

For the fourteen years I knew that Board there were never more 
than two or three gentlemen of that faith on the Board, because 
they did not consider it a matter of sufficient interest to them. 
But all at once ten of them are on the Board ! What are they 
there for! They, with twelve other gentlemen, making twenty- 
two in all, nearly all of whom, I believe, are from Europe, at least 
a majority of them, and who in their native, country had been 
accustomed to love one another with the love that wolves have for 
sheep, and treated each other with such soft dalliance as the ax and 
the faggot, these gentlemen are found all at once in loving embrace, 
and they pass these resolutions. 

Now what turns out to be -the secret in regard to this mat- 
ter ? I do not believe the person who penned this first resolution 
supposed any one would be for an instant deceived by this pretense, 
which is thrown in there, as its motive, in these words : " It being 
the true object and intent of this rule to allow the children of 
parents of all sects, in matters of faith, to enjoy alike the benefits 
of the school fund." Do your Honors see the coming- events by 
the shadows which they cast before them ? Mark, it is the funds 
( these gentlemen are after for the sects ! There is not a word 
about the State, and the desire to have good citizens ; but the 
motive is the equality of the sects in order to have a fair share or 
grab at the funds, in an indirect way, to be sure. 

Does this look like the free, fair, equal, and universally satis- 



Argument of Rufus King. 311 

Minor et al. v. Board of Education of Cincinnati et al. 

factory state of things that was previously existing? Equality, 
indeed.! Does it take any man a moment to see who gets the 
advantage by this resolution, and who loses by it? Equality! 'The 
tyrant who has accustomed himself to live upon some vile chaff. 
noxious to every one but himself, issues his edict that no man shall 
eat bread, and derisively forces it down by adding, because he 
desires his subjects to live upon an equality. 

Thus if the Court will come to the pith of the matter, men 
having no belief, Nullifidians, Mr. Matthews gently calls them, and 
who do not want any belief, do not want any body else to have 
any, passed these resolutions, not for any love of equality, but 
because they oppose and hate and scoff at all who believe in relig- 
ious instruction. And to what a condition does this reduce the 
public schools. Is that sectarian in the sense in which Mr. Mat- 
thews lays' it down here? Oh! not at all; these men. are "the 
Liberals ! " 

But besides this tyranny I think these gentlemen were acting 
in bad faith in this matter. We had a meeting in Pike's Hall to 
oppose their views, but they took snap judgment on us. 

Let that pass ; what I am now pointing at is that the two par- 
ties to this coalition were not acting in good faith with their constit- 
uents and the State, nor even with each other. What think you 
each was driving at? One part of them seeks — what? To split 
the Catholic church. They hope to have a division of the Cath- 
olic church in this city. I get this from the Cincinnati Commercial, 
which has been the active ally, and, I suppose, in the secrets of 
this party. Mr. Matthews also put it plainly yesterday, in argu- 
ment, that they have got' up this thing as the wedge which they are 
going to drive in between the Catholic clergy and their people. 
Heaven save the mark ! What have these gentlemen been doing, 
that they have not read, in the history of that church for a thousand 
years, the efforts of far more dangerous adversaries than they — of 
kings and potentates — to divide and break it, all of which have dis- 
astrously failed and recoiled upon their contrivers. 

The fate of my friends on the other side is perfectly clear. It 
will be like that of those poor Indians on the Plains we read of 
lately in the newspapers, who tried to head the Pacific Railroad 
train. Poor, unsophisticated sons of the prairie ! They had heard 



j 12 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

of capturing trains — a little diversion invented during the late 
war — and one night, as the train was approaching, two or three 
hundred of these copper-colored individuals stretched a rope across 
the track, half of them holding on to each end. Along came the 
train, and in a moment the poor Indians were flying in the air, as 
you may suppose, in most disorderly attitudes. 

Now, my friends have my best wishes, in the way Sidney 
Smith gave his to a friend, a colonial bishop, who was about sailing 
for New Zealand.. He went on board the ship to comfort him and 
see him off, telling him what terrible man-eaters these savages were 
and there was nothing they liked so much as cold missionary on the 
side-board, and finally consoling his friend as they parted, with the 
hope : " My dear brother, may you disagree with the fellows that 
eat you." I don't want to be there, your Honors, when the train 
comes along, but, still, would like to see my friends, Stallo, Hoadly, 
and Matthews, holding the rope about the time the Roman Catho- 
lic Church comes thundering down upon this little plot. All I can 
wish, then, is that when tossed into the air they may fall outside of 
the track. 

That is the object of the left wing, these twelve gentlemen, 
who are mainly defending this suit — a very shallow and preposter- 
ous thing for sensible men to attempt — and I think it will give 
Archbishop Purcell a pleasant little laugh, if your Honors allow 
them to try it. 

But the other party in this coalition, may it please the Court, 
is engaged in an effort which it behooves your Honors to regard with 
more vital and penetrating search, because it is vastly more dan- 
gerous than this idea of splitting the Catholic Church. 

It is their pious object to break up the present system of pub- 
lic schools, and bring about in earnest that division of the school 
fund among the sects which is only shadowed in these resolutions. 
This is their motive in this plot ; and how it is to ripen and come 
to pass, and what probability there is that the Roman Catholic 
people are going to break up their system of separate schools, vio- 
late all their traditions, and transfer their children over to such 
schools as these will be under the auspices of these resolutions, as 
expounded here by learned counsel, may be judged from extracts 



Argument of Rufus King. 313 

Minor et al. -v. Board of Education of Cincinnati et al. 



which I shall now read from newspapers known as their leading 
indexes of opinion. 

Three days after the passing of these resolutions, thus spoke 
the Catholic Telegraph, of this city, unquestionably good authority 
for all Roman Catholics : 

" The first chapter in this school controversy is now closed \ 
it ends with the triumph of law. The second chapter will open 
with agitation against the law itself, in the name of justice, and the 
the right that both Protestants and Catholics have to positive reli- 
gious 'instruction in separate schools. If the school laws be modi- 
fied to secure denominational education for all, Catholics will 
cheerfully pay their portion of the school fund. If this wise 
amendment can not be made, taxation for school purposes must 
cease. Now that the Bible has been excluded from the schools, if 
the professed Protestants have been sincere in all that they have 
said in its favor, they must agree with the Catholics in the second 
issue of this question. Consistency will make them our friends in 
the future." 

There, your Honors, is policy ; something deeper and more 
worthy of your apprehension than tricks to divide a Church. 
There is a stroke which measures the gauge of men who are 
earnest in believing as all Roman Catholics do, people and clergy, 
— and I respect them for it — that religion is inseparable from educa- 
tion. I do not, of course, mean religion in their sense, but religion 
in the sense of the great cause now at stake, and defined in the 
words of the Master; that religion which the State encourages and 
must have — the religion which the Constitution here calls for and 
which your Honors are bound, as ministers of that Constitution, to 
uphold. 

I will now read another authority from the pen of a man 
unequalled, in some respects, by any Roman Catholic in this coun- 
try — a brilliant and far-seeing writer — Mr. McMasters, of the New 
York Freeman s 'Journal: 

" If the Catholic translation of the books of Holy Writ, 
which is to be found in the homes of all our better educated Cath- 
olics, were to be dissected by the ablest Catholic theologian in the 
land, and merely lessons to be taken from it-^such as Catholic 
mothers read to their children, and with all the notes and comments 



3.14 Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et al. 

in the popular edition, and others added, with the highest Catholic 
indorsement — and if these admirable Bible lessons, and these alone, 
were to be ruled as to be read in all the public schools, this would 
not diminish, in any substantial degree, the objection we Catholics 
have to letting Catholic children attend the public schools. 

" This declaration is very sweeping, but we will prove its cor- 
rectness. 

" 1. We will not subject our Catholic children to your teach- 
ers. You ought to know why, in a multitude of cases. 

" 2. We will not expose our Catholic children to association 
with all the children who have a right to attend the public schools. 
Do you not know why ? 

" 3. The perfunctory reading of the best of Bible lessons 
amounts to nothing as a rule of practical morals. The practical 
religion of the school-room is to inculcate lessons of piety at every 
opportunity. Except the system be founded on fraud, the teacher 
in our public schools has no right to explain, even, any one of the 
Christian virtues. The Jew and the Infidel has a right to send his 
child to such a school as much as the Catholic. The teacher, 
according to the programme, has no right to explain to a child what 
is meant by ' Our Redeemer.' 

" The plain and undeniable resolution of the whole question 
is this ; the State or the city has no more right to tax me for 
schooling my neighbor's children than for feeding them, or clothing 
them, or housing them. The utmost that can be granted is, that 
for abandoned children the State may provide schooling, as it pro- 
vides food and clothes for its paupers. I will not suffer my child 
to go to the poor-house for its dinner, nor to wear the clothes of 
the alms-house, so long as I can prevent it. And as little will I 
suffer the political power to dispense poor-house instruction to my 
child." 

Here is another excellent authority among Roman Catholics — - 

The Tablet: 

" The School Board of Cincinnati have voted, we see from 
the papers, to exclude the Bible and all religious instruction from 
the public schools of the city. If this has been done with a view 
to reconciling Catholics to the common school system, its purpose 
will not be realized. It does not meet, or in any degree lessen, our 
objection to the public school system, and only proves the 
impracticability of that system in a mixed community of Catholics 
and Protestants ; for it proves that the schools must, to be sus- 
tained, become thoroughly godless. But to us, godless schools are 
Still less acceptable than sectarian schools, and we object less to the 



Argument of Rufus King, 315 

Minor et al. v. Board of Education of Cincinnati ct ah 

reading of King James' Bible, even in the schools, than we do to 
the exclusion of all religious instruction. American Protestantism 
of the orthodox stamp is far less evil than German infidelity. 

"Since our community is composed of Catholics and Pro- 
testants, and the Government is bound to respect and protect the 
conscience or full religious liberty of each, it can sustain no system 
of schools for both to which either the Catholic or Protestant 
objects. 

" It must, then, either leave the whole question of education, 
as it does religion, to the voluntary principle, or it must divide the 
schools, as it does in most European nations, into two classes, the 
one for Catholics and the other for Protestants, with the education 
in each under the supervision and control of its respective religious 
authority. Nothing less than either the one or the other will 
secure to Catholics their equal rights, and satisfy Catholic con- 
science. 

iC The system of common schools, as now adopted in this 
country, is in the main an imitation of the system decreed by the 
Convention which sentenced Louis XVI to the guillotine, abolished 
Christianity, and declared death an eternal sleep. The object of 
the Convention was, by a system of godless schools, to root out 
religion from the French mind, and to train up the French youth 
in absolute ignorance of, or unbelief in, any life beyond this life, and 
any world that transcends the senses. If we adopt and carry out 
the same system, our American youth must grow up thoroughly 
unbelieving and godless, as the order of the Cincinnati Board of 
Education not directly foreshadows. Catholics will do well to be 
on their guard against forming alliances to help them get rid of one 
evil by fastening on the country another, an infinitely greater evil 
— the very evil the forever infamous Convention sought, with 
devilish ingenuity, to fasten on France." 

Shade of Cotton Mather! The idea that the common 
schools of America originated in the devilish ingenuity of Robes- 
pierre, Couthon, etc. That, indeed, is new. I 

But, now, I beg leave to quote a paper addressed to this Board 
of Education, and which applies directly to this case. -It not only 
shows that no such dogma as that which the defendants' counsel 
have been imputing to the Roman Catholics is set up by them, but 
the folly of this idea that they will come to your "secularized 
schools." It will also raise, in every inquiring mind, the question • 
why these defendants, instead of creating a "schism in society," 



316 Superior Court of Cincinnati. 

Minor et a!, v. Board of Education of Cincinnati et al 

did not pay heed to the invitation extended in the last paragraph, 
the meaning of which I will presently show more fully : 

"The entire government of public schools in which Catholic 
youth are educated can not be given over to the civil power. 

" We, as Catholics, can not approve of that system of educa- 
tion for youth which is apart from instruction in the Catholic faith 
and the teaching of the Church. 

"• If the School Board can offer anything in conformity with 
these principles, as has been done in England, Fra-nce, Canada, 
Prussia, and other countries where the rights of conscience in the 
matter of education have been fully recognized, I am prepared to 
give it respectful consideration. 

"John B. Purcell, Archbishop of Cincinnati. 

" Cincinnati, September 18, 1869." 

Now, the theory of the learned counsel and their clients is 7 
that when the Catholics come to our schools, then this split is to 
take place. But will they come ? 

No, your Honors ! Roman Catholics join in applauding these 
resolutions, but with no idea of committing their children to such 
schools ! Having .rifled them of all which, in the conscience of 
the men of that faith — aye, or of any faith — makes them valuable 
or respectable as a system of education for the masses, they will 
turn from them and spurn them with contempt 5 they will hiss at 
them as an open shame ; and your schools, recreant to the princi- 
ples upon which your fathers planted and fostered them, will deserve 
the scorn and derision which will fall upon them in the sight of all 
righteous men. The supremacy of God has been the ever-ruling 
faith of this land. What the aims and traditions of Americans 
have heretofore been, so they will continue. Protestant, Catholic 
or Israelite, all will join in scouting a system which will be but a 
" poor-house " affair, and to which poor men will disdain to send 
their children. 

I say there is not a true-hearted Catholic nor Israelite in this 
city who would not rather have his tongue plucked from its root 
than give his assent to the doctrine laid down here for the defense. 
No man of patriotism or heart, much less of sense, will agree to 
this idea of turning adrift these unfortunate children of vice and 
misery, who, it is admitted in one, passage of the answer, are desti- 



Argument of Rufus King. 3 1 7 

Minor et al. -v. Board of Education of Cincinnati et a/. 

tute of all religious influence but that of the schools, and yet are 
declared in another passage to be unworthy of citizenship without 
its elevating spirit. 

* These resolutions may be the doctrine of the fanatics of both 
extremes, but, thank God, it is not the doctrine of the Govern- 
ment and Constitution of Ohio. 

Let us now inquire whether the mode in which I have shown 
that the equality of all creeds and the freedom of all sects were so 
thoroughly respected and secured in these schools by the rules of 
1842 and of 1852, does not accord with Catholic conscience and 
Catholic laws and usages elsewhere. And here we shall get fur- 
ther light upon the suggestion held out by Archbishop Purcell to 
the defendants. 

First, I turn to Catholic Ireland, certainly a " fighting 
people," — as Mr. Matthews remarked of the Protestantism of 
America — and quite as likely as any people upon earth to revolt 
against any aggression upon their religious or conscientious convic- 
tions. I read, from the thirty-fourth annual report of the Com- 
missioners of National Education in Ireland, the following outlines 
of the system which has been established in that country upon the 
principle of protecting children of all sects, united in the same 
school, from religious proselytism, without any sacrifice of religious 
and moral instruction : 

" The object of the system of national education is to afford 
combined literary and moral, and separate religious instruction, to 
children of all persuasions, as far as possible, in the same schools, 
upon the fundamental principle that no attempt shall be made to 
interfere with the peculiar religious tenets of any description of 
religious pupils. 

" It is the earnest wish of Her Majesty's Government and of 
the Commissioners that the clergy and laity of the different reli- 
gious denominations should co-operate in conducting national 
schools. 

" No national school-house shall be employed, at any time, 
even temporarily, as the stated place of worship of any religious 
community. No aid will be granted to a school held in any place 
of worship. No emblems or symbols of a denominational charac- 
ter shall be exhibited in the school-room during the hours of united 
instruction. 

" Apartments are to be afforded to the children of all national 



j 1 8 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

schools for receiving such religious instruction as their parents or 
guardians approve of. 

" Religious instruction must be so arranged that each school 
shall be open to children of all communions. No child shall 
receive, Or be present at any religious instruction of which his 
parents or guardians disapprove, and the time for giving such 
instruction shall be so fixed that no child shall be thereby, in effect, 
excluded, directly or indirectly, from the other advantages which 
the school affords." 

Such is the mode, in brief, of the Irish " national schools," 
established in 1833, and organized by a mixed board of Catholics 
and Protestants, chief among whom were Archbishop Murray, then 
the venerable head of the Roman Catholic clergy of Ireland, and 
Whately, the Archbishop of the English Church in Ireland. Out 
of nearly one million pupils attending these " national schools" in 
1867, the Roman Catholics were in an immense majority, number- 
ing 738,837, while only 171,236 were of the Protestant faith. So 
entirely are all denominations united in this great work of ele- 
mentary education that only eleven per cent, of the whole num- 
ber of children are attending schools exclusively Protestant or ex- 
clusively Catholic, while eighty-nine per cent, are in these mixed 
schools, where Protestant children are instructed in the Protestant 
religion without any such peril to Catholic souls as the eloquent 
imagination of counsel would lead us to deplore. In these schools 
no difficulty has been found in conducting them upon a principle, 
regulated by fixed rules, which inculcates religion, morality and 
knowledge to all, and yet tampers with the religious faith and 
conscience of none. 

Next, to show how easily this question was adjusted in France, 
the nation which stands pre-eminent in Catholic Europe, and by 
such a statesman as M. Guizot, I beg leave to read a passage from 
Mr. Kay's excellent work on The Social Condition and Education of 
the People. It is long, but truly valuable : 

a In 1833, M. Guizot, then Minister of Public Instruction, 
laid before the Chambers a great and comprehensive scheme of 
national education, which received their assent and was immediately 
put into operation throughout the whole of France. 

" It was long a question of great doubt among French legisla- 



Argument of Rufus King. 319 

Minor et a!. <v. Board of Education of Cincinnati ct a/. 

tors in what manner the difficulties arising from religious differ- 
ences could be overcome. The different religious parties in 
France were as earnest in their demands as the Church and dissent- 
ing parties in England at the present day. 

" The Chambers were called upon to decide whether they would 
establish separate schools for all the different sects ; or whether they 
would establish mixed schools, where no religious education should 
be given, and where the children of all sects should be instructed 
together ; or whether they would allow the parishes to found their 
own schools, and elect teachers educated in the religious belief of 
the majority of the parishioners, merely requiring, as an indispensa- 
ble preliminary, that the children of the minority should be allowed 
to avail themselves of the secular instruction given in the schools, 
and to leave the class-rooms when the religious instruction was 
given there — on condition, however, that their parents provided in 
some other manner for the efficient education of their children in 
their own religious belief. 

" The Chambers felt, that to adopt the first course, would be 
to leave the education of many children totally unprovided for, in 
the cases of those communes, where there was not a sufficient 
number of some one sect in a commune to enable the government 
to establish a separate school for them ; that, to adopt the second 
alternative, would be to leave the most deeply important part of 
education either wholly neglected, or at least most indifferently pro- 
vided for ; and that to deny the master the liberty of giving practi- 
cal religious education in the school, was to deprive him of the 
most powerful means of improving the character of his children. 
They, therefore, adopted the third alternative, and resolved to place 
each of the normal colleges of the different departments, and each 
of theprimary schools of the different communes, under the man- 
agement of a professor or teacher, selected from the most numer- 
ous Christian sect of the department or communes in which the 
college or school was situated. They further determined, that the 
parents, who differed in their religious belief from the director of 
the college, or from the teacher of the school, should have the power 
of requiring their children to absent themselves during the periods of 
religious instruction ; on condition, however, that such parents provided 
elsewhere for the religious education of their children. 

" This liberal and excellent scheme has been undeservedly 
taunted with irreligion. The cries of the French Jesuits, raised 
from purely interested motives, have found an echo in the mouths 
of English Protestants, and- this belief, strengthened by our lauda- 
ble fear of excessive centralization, and by our national prejudices 
against the French, have prevented us doing justice to the magnifi- 



320 Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et al. 

cent efforts which they are making to educate their people, and by 
that means to raise their virtue and their happiness. 

" The importance of the religious element in the education of 
the children, is put forward in great prominence by the French 
statutes and regulations upon the subject. In the words of the 
statute of April 25th, 1834, upon the elementary schools : 

" ' In all the divisions (of each school), the moral and religious 
instructions shall rank first. Prayers shall commence and close all 
the classes. Some verses of the Holy Scriptures shall be learned 
every day. Every Saturday, the Gospel of the following Sunday 
shall be recited. On the Sundays and fast days the scholars' shall be 
conducted to divine service. The reading books, the writing copies, 
the discourses and exhortations of the teachers shall tend continu- 
ally to penetrate the soul of the scholars, with the feeling's and 
principles, which are the safeguards of morality, and which are 
proper to inspire the fear and love of God.' 

" And M. Guizot, in the letters which he addressed, while 
Minister of Public Instruction, to each of the teachers of France, 
says : 

" ' Among the objects of instruction, there is one which 
demands of me particular notice ; or, rather, it is the law itself, 
which, by placing it at the head of all the others, has committed it 
more especially to our zeal ; I refer to moral and religious instruc- 
tion. Your labors, in this respect, ought to be both direct and 
sometimes indirect. 

" If by your character and your example, you have succeeded 
in obtaining in your school all the authority, with which I desire to 
see you clothed ; the moral lessons which you will give, will be 
received with deference ; they will be something more than an 
instruction for the minds of the pupils ; they will supply the insuf- 
ficiency of the primary education so incomplete, and often so 
vicious in the present state of our morals and our intelligence. 

" Do not neglect any means of exercising this salutary influ- 
ence ; increase it by means of conversation with individual 
scholars, as well as by means of general lessons ; let it be your 
constant thought and your constant duty. 

" It is absolutely necessary, that popular instruction should not 
be confined to the development of the -intelligence ; it should 
embrace the whole soul ; it should awaken the conscience, which 
ought to be elevated and strengthened according as the intelligence 
is developed. It suffices to tell you, sir, what importance the relig- 
ious instruction ought to have in your eyes. The teachers, who 
will be called upon to give this instruction in the elementary 
schools, ought to have been well prepared for this duty, by having 
themselves received a sound and religious education in the normal 



Argument of Rufus King. 321 

Minor et al. -v. Board of Education cf Cincinnati et al. 

colleges. Do not, however, satisfy yourself with the regularity of 
forms and appearances; it is not sufficient, that certain observances 
should be maintained, that certain hours should be consecrated to 
religious instruction ; it is necessary to be able to assure ourselves 
of its reality and efficiency. I invite you to make known to me the 
exact state of religious education in your own school.' " 

These are examples of what is suffered and done in Roman 
Catholic countries ; and they serve to show how empty are these 
pretenses of learned counsel that the consciences of Roman 
Catholics are oppressed by the freer system heretofore practiced in 
the public schools of Cincinnati. Here are the common ''national 
schools" of Roman Catholic States, mingling religious and secular 
instruction ; but none of that difficulty, or peril of heresy and dam- 
nation of souls, so eloquently imagined in the name and behalf of 
Roman Catholics, by the gentleman who preceded me. These, 
and the examples of Prussia, Switzerland, and other European 
States, already placed before you by other counsel, show your Hon- 
ors not only that these countries, one by one, have adopted the 
American system of public schools as a national necessity, but 
this, also, that none of them countenance this crude idea of secu- 
larizing education. In all of them religion, morality, and knowl- 
edge are taught in the common schools, and there is no difficulty 
about it. 

We come back now to the words of the Constitution : " Re- 
ligion, morality, and knowledge are essential " — essential for what ? 
The salvation of the soul ? the inculcation of a dogma ? Not at 
all: no such whisper there; no Church and State ; no dogma, but 
" essential for good government." That is the object at which this 
law is aiming. We are dealing with common sense now, and have 
not got out into this region of air where no man can define any- 
thing. If the Court please, what is religion in the sense of this 
Constitution ? There is no theology, no dogma necessary here, no 
Church. But, to show the religion which, the Constitution intends 
the schools are to teach, I go directly back to the pure words of 
Him who was more than man, and who has given you and me a 
definition that, if we can not live up to more, will suffice all the pur- 
poses of this State, and that will admit no lawyer a half a minute to 
quibble over. Turn to the twenty-second chapter of Matthew, 



2,11 Superior Court of Cincinnati. 

Minor et al. <z>. Board of Education of Cincinnati et al. 

thirty-fifth verse, and you will find that one of our profession, 
tempting the Master — 

'Judge Storer. Just like a lawyer. 

Mr. King, Yes; but he was a pretty good man, as your 
Honor will presently see. He asked this question : " Tempting 
him and saying, ' Master, which is the great commandment in the 
law ? ' Jesus said unto him, ' Thou shalt love the Lord, thy God 
with all thy heart, and with all thy soul, and with all thy mind.' " 
(St. Mark adds to it — "and with all thy strength.") " This is the 
first and great commandment, and the second is like unto it. 
' Thou shalt love thy neighbor as thyself.' On these two com- 
mandments hang all the law and the prophets." St. Mark's narra- 
tive adds : "And the scribe said unto Him, ' Well, Master, thou 
hast said the truth ; for there is but one God ; and there is none 
other but He ; and to love him with all the heart, and with all the 
understanding, and with all the soul, and with all the strength, and 
to love his neighbor as himself, is more than all whole burnt offer- 
ings and sacrifices. And when Jesus saw that he answered dis- 
creetly, he said unto him : Thou art not far from the Kingdom of 
God." 

This, if your Honors please, is the religion of the Constitu- 
tion and of the public schools. It is drawn from the Bible ; and 
just here my eye falls upon some lines, of what poet I know not, 
a tribute to that Book : 

" How pure, how perfect are Jehovah's laws, 

From them the soul its best instruction draws, 
Truth, virtue, love and wisdom they impart, 

Light to the eyes and rapture to the heart. 
Bright is the gloomy cavern's jeweled ore, 

Sweet is the roving bee's collected store : 
But what can nature, what can art bestow 

Like the pure words that from Jehovah flow ? " 

But, gentlemen on the other side, although they do not like 
the Bible, can not object to the dictionary. Dr. Johnson, prince 
of lexicographers, defines religion to be " Virtue, as founded upon 
reverence of God, and expectation of future rewards and punish- 
ments." Dr. Webster defines it, tc as distinct from theology, relig- 



Argument of Rufus King. 323 

Minor et al. v. Board of Education of Cincinnati et al. 

ion is godliness, a real piety, in practice, consisting in the perform- 
ance of all known duties to God and our fellow-men, in obedience 
to divine commands or from love to God and His law." 

\_Mr. King also quoted Dr. Watts, Bishop South, and Richardson's 
and Worcester s dictionaries. He claimed that McGujfefs Readers, 
as would appear by the lessons marked on the fly leaves of the copies 
which had been placed in evidence, abounded in references to these defi- 
nitions, and, from beginning to end, not only contained large and copious 
extracts from the Scriptures, hut tended by a regular progressive series 
of lessons to inculcate in children precisely those tivo precepts of rever- 
ence to God and His attributes, and love for their neighbor, and in a 
manner admirably adapted to fix the interest and impress their char- 
acter.^ 

For a practical and compendious statement, the function of the 
common schools is best expressed in the Massachusetts statute — 
Rev. Stat, of i860, p. 216, sec. 10. 

" It shall be the duty of the President, professors, and tutors 
of the University of Cambridge, and of the several colleges, of all 
preceptors and teachers of academies, and of all other instructors of 
youth, to exert their best endeavors to impress on the minds of 
children and youth committed to their care and instruction, the 
principles of piety and justice and a sacred regard for truth ; love of 
their country, humanity and benevolence ; sobriety, industry 
and frugality ; chastity, moderation and temperance ; and those 
other virtues which are the ornament of human society and 
the basis upon which a republican constitution is founded ; 
and it shall be the duty of such instructors to endeavor to lead 
their pupils, as their ages and capacities will admit, into a clear 
understanding of the tendency of the above-mentioned virtues to 
preserve and perfect a republican constitution, and secure the 
blessings of liberty as well as to promote their future happiness ; and, , 
also, to point out to them the evil tendency of the opposite vices." 

This is the religion and morality which the Constitution seeks 
to inculcate through the common schools, as essential to good gov- 
ernment; and this is the "religious instruction" which the School 
Board of Cincinnati seeks, by the first of these resolutions, to cut 
off from the people. The argument that this is not " formal 
instruction," and, therefore, is not prohibited by this resolution, is 
an evasion. The resolution does not contain the word " formal." 



324 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

It prohibits any religious instruction, no matter in what form ; and 
the Court may well suspect its sweeping terms when an artifice like 
this is brought to its aid. 

But then, all this is denounced as "broad religion" and a 
" humbug." Religion, it is insisted, must be something more dis- 
tinctive. One of the counsel denounces Church and State, while 
another insists that religion means some creed or church, and 
demands which of them we are going to adopt ; again and again 
confusing all religion with theology and church. Here, too, we 
are confronted with the cases of Bloom v. Richards, 2 Ohio State, 
387, and McGatrick v. IVason, 4 Ohio State, 566, which are 
cited as confidently as though they repealed the provision of the 
Constitution now in controversy. It is true that in those cases the 
proposition is laid down that Christianity is no part of the law of 
Ohio — a proposition which nobody controverts, for the reason suf- 
ficiently explained in the passage already quoted from, the case in 
2 Harrington, 553. But this, and all that is said in those cases 
concerning the relation between religion and the State, is simply 
obiter dictum — irrelevant to the matter decided. No such question 
was involved. Both cases turned upon that section of the " Act 
for the prevention of certain immoral practices" which makes it 
penal to be engaged on Sunday at " common labor," works of neces- 
sity or charity only excepted ; provided, nothing herein contained 
shall be construed to extend to those who conscientiously do observe 
the seventh day of the week as the Sabbath." In Bloo?n v. Rich- 
ards it was attempted to defeat a contract for the sale of land 
because made on Sunday ; but the Court decided that, being a 
single act, privately done, it was not " common labor," and no 
violation of the statute. In McGatrick v. Wason, a laborer who 
was hired to ship cargo on a vessel on Sunday, sued for his wages. 
It being proved that navigation was about to close, and that the 
master refused to take the cargo unless shipped that day, the Court 
decided that it was a " work of necessity," and excused by the 
statute. Your Honors, therefore, see that in both cases it was 
merely a question whether the statute applied ; and that the first 
was determined by deciding that a single private contract on Sunday 
is not "common labor," and the second, that the labor was a 
" work of necessity." The constitutionality or obligation of the 



Argument of Rufus King. 32$ 

Minor ct al. -v. Board of Education of Cincinnati et al. 

statute was not disputed. No one questioned its motive or policy. 
It was sufficient that the statute did not apply in either case, and 
that was the end of it. Hence, there was no occasion nor ground 
for tacking on, as an appendix, the abstract propositions printed in 
the syllabus of those cases, that " neither Christianity nor any 
other system of religion is a part of the law of this State," and 
that " the statute would not stand for a moment, as the law of the 
State if its sole motive was to enforce the observance of the 
Christian duty of keeping that day holy." Such comments were 
simply wasted. They have the force merely of private opinions 
of the judges, but not of law. And it is extraordinary that a man 
of such ability as the judge who delivered the decision in both cases 
should have failed to catch the salient hint, so quickly taken by 
Judge Caldwell, dissenting in 18 Ohio, 489, and Judge Scott, in 9 
Ohio State, 439, from the .title and proviso of the act. He hastily 
overlooked the fact that the very title of the act is to prevent 
" immoral practices," and that the proviso exempts only those who 
do conscientiously observe the seventh day of the week as the Sab- 
bath.'" Why are they exempted ? Why, but because they reli- 
giously observe another "Sabbath?" Why, then, does the law 
of Ohio enforce the observance of Sunday ? Manifestly, the 
motive is religious. Without a doubt, it is reverence for that day 
as the Christian Sabbath. Stranger still was the learned judge's 
oversight in failing to observe that this same " Act for the preven- 
tion of immoral practices," in another section, makes it penal to 
" profanely swear by the name of God, Jesus Christ, or the Holy 
Ghost." Here he would have found not only the motive and 
enforcement of a religious duty because it is Christian, but a 
recognition of the doctrine of the Trinity itself. 

Not to dwell longer upon this point, he who would see the 
true doctrine, and a perfect exposition, of the relation existing by 
law, in this country, between religion and the State, will read that 
masterly decision of Chief Justice Clayton. 2 Harrington, 553. 
In that case the prisoner was convicted of blasphemy against Jesus 
Christ, and a reversal was sought upon the ground that the statute 
was unconstitutional, because it preferred Christianity over other 
modes of worship. Thus the question was raised directly and in a 
22 



2 26 Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et al. 

manner not attempted in either of the cases in the Ohio Reports. 
Chief Justice Clayton, in concluding his opinion, said: 

" We hold these to be legal proofs of what has been and now 
is the religion preferred by the people of Delaware. And inde- 
pendent of these and other evidence existing on the statute book of 
the State we are bound to notice, as judges acting under the 
authority of the people, at all times, what is that religion which 
they have voluntarily preferred. We know not only from the 
oaths that are administered by our authority to witnesses and jurors, 
but from that evidence to which every man has access beyond these 
halls, that the religion of the people of Delaware is Christian. 
* * * The distinction is a sound one between a religion pre- 
ferred by law and a religion preferred by the people without the coercion 
of law ; between a. legal establishment which the Constitution 
expressly forbids and a religious creed freely chosen by the people 
themselves." 

The religion to be taught in the common schools, I have 
endeavored to show, is not sectarianism, nor theology, but the 
eternal, immutable, and essential principles of the Bible, the relig- 
ion taught by the great head of all religion. Certainly the Consti- 
tution means something. That can not be denied ; and while it is 
not claimed by the plaintiffs that Christianity is part of the law in 
that sense which counsel for defendants would fain have us to claim;, 
yet it is just as undeniable that the "religion" which the Constitu- 
tion of Ohio expressly recognizes, is Christianity. This is beyond 
doubt or cavil, a Christian State. That is the general and prevail- 
ing religion of the people ; and the courts are bound to notice and 
maintain it, just as they would any general custom of the State, 
whenever it is called in question. That custom defines that word 
as used in the Constitution. It is not part of law ; yet its precepts 
and principles enter largely into the formation of the common law 
as now administered here in the Court. This becomes evident if we 
search back to the fountains — the origines legis. It begins with the 
laws of Alfred and Edward the Confessor, which continually cite 
the Scriptures as thqir sanction ; and the same practice is distinctly 
traceable in the days of Coke. The influence of religion appears 
more or less to this day not only in the decisions but in the daily 
practice here in our courts. A jury is not impaneled to try a 
case and the judge does not sit upon the bench without taking an 



Argument of Rufus King. 327 

Minor et al. -v. Board of Education of Cincinnati et al. 

oath before Almighty God. And this is so, not only here in Court, 
but it is all about us. We breathe the influence of religion 
unconsciously, as we breathe the air ; it flows through the whole 
body of the community as the rich blood flows through our bodies, 
carrying with it the right materials of those tissues, from which the 
very protoplasm of society must be derived, and to which it must 
look for succor and regeneration. The law itself is plain ; it 
is written down. It means something, and it is the duty of the 
Court to extract that meaning from it. The Court is bound to 
make some sense out of the law. " Religion, morality, and 
knowledge being essential to good government, the legislature shall 
pass suitable laws to encourage schools and the means of instruc- 
tion." Instruction in what ? Why manifestly in the three sub- 
jects which go before; the antecedents, grammatically, of the 
sentence. If the language had been, " reading, writing and cipher- 
ing, being essential to good government, it shall be the duty of the 
legislature to encourage schools and the means of instruction," the 
learned counsel would have had no difficulty in determining the 
grammatical force and intent of the words. 

And now, may it please your Honors, let us briefly trace the 
history of this provision, and see whence it derives its origin. As 
it now stands in the Constitution of 1 851, the text is literally thus : 

"Sec. 7. \Blll of Rights. ,] All men have a natural and inde- 
feasible right to worship Almighty God according to the dictates of 
their own conscience. No person shall be compelled to attend, 
erect, or support any place of worship, or maintain any form of 
worship, against his consent ; and no preference shall be given, by 
law, to any religious society ; nor shall any interference with the 
rights of conscience be permitted. No religious test shall be 
required as a qualification for office, nor shall any person be incom- 
petent to be a witness on account of his religious belief; but noth- 
ing herein shall be construed to dispense with oaths and affirmations. 
Religion, morality, and knowledge, however, being essential to good 
government, it shall be the duty of the General Assembly to pass 
suitable laws to protect every religious denomination in the peace- 
able enjoyment of its own mode of public worship, and to encourage 
schools and the means of instruction." 

All this except the clauses which save the incompetency of 



328 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. , 

witnesses and protect religious denominations in their own mode of 
worship — is derived, almost in terms, from the Constitution of 1802. 
In that instrument the third section of the Bill of Rights con- 
cludes in these words : 

"But religion, morality and knowledge, being essentially 
necessary to good government and the happiness of mankind, 
schools and the means of instruction shall forever be encouraged 
by legislative provision, not inconsistent with the rights of con- 
science." 

That, your Honors, was the clear language and sentiment of 
the men who founded the State. That clause shows the scope and 
sense of the provision as it now stands in section seven of the Bill 
of Rights 1 differing, only by adding, and inserting just here, a new 
security to each religious denomination of its mode of worship, an 
addition in no wise repealing or detracting from the original text, 
which distinctly denotes the schools as the means of propagating 
the three great essentials of good government. The Constitution 
of 1 85 1 omits the qualifying clause, "not inconsistent with the 
rights of conscience/' But nevertheless it stands by implication. 
We do not claim that the omission alters the great principle of 
equality which we defend. 

But let us go back a step further, your Honors, and see where 
we find the true derivation of this law. Turn to that venerable 
charter of liberty, of which as a son of the North-west I am ever 
grateful and proud, "the Ordinance of 1787" — and there, firmly 
rooted among those special articles which it is declared shall be "arti- 
cles of compact between the original States and the people and 
States in the said territory, and forever remain unalterable, unless 
by common consent," you will find this : 

" Article III. Religion, morality and knowledge, being neces- 
sary to good government and the happiness of mankind, schools., 
and the means of education, shall forever be encouraged." 

We stand here, therefore, in defense of a perpetual compact, 
unalterable save by common consent ; and thus your Honors see 
why this provision in the present Bill of Rights has been so 
sacredly preserved and handed down to us, almost in the same 



Argument of Rufus King. 329 

Minora al. <v. Board of Education of Cincinnati ct a!. 

words, through the two successive Constitutions of the State. It 
is the primordial law of the North-west. It is the testimony and 
covenant of the fathers. And to show your Honors whence they 
derived it and why it was sacred in their eyes, let me quote again 
from the ordinance, a record which imports absolute verity. There 
you will find it declared, in the preamble to the special articles of 
compact which I have mentioned, that, " for extending the funda- 
mental principles of civil and religious liberty, which form the , 

BASIS WHEREON THESE REPUBLICS, THEIR LAWS AND CONSTI- 
TUTIONS are erected — to fix and establish those principles as the 
basis of all laws, constitutions and governments, which forever 
hereafter shall be formed in the said territory, etc., it is hereby 
ordained," etc. 

There then is my authority. There you find it laid down, in 
words which are inefFaceable, not only as a principle " of civil and 
religious liberty," but as' one of the principles upon which " these 
republics, their laws and constitutions are erected," that religion, 
morality and knowledge, are forever to be encouraged by schools 
and the means of education, as necessary- to good government. 
There is the power by which the thirteen colonies became a great 
nation. 

And to show that this declaration of the ordinance was no 
sudden or superficial idea of religious liberty, here is a resolution 
passed by Congress, October 12, 1778: 

" Whereas, true religion and good morals are the only solid 
foundations of public liberty and happiness ; 

Resolved, That it be and it is hereby earnestly recommended 
to the several States to take the most effectual measures for the 
encouragement thereof." 

Another resolution, on the 7th of March, 1778, appoints a 
day of fasting and prayer to God, that among other blessings " it 
may please Him to bless our schools and seminaries of learning, 
and make them nurseries of true piety, virtue and useful knowledge" 

Wholesome doctrine ! And may it please your Honors, it 
comes from good judges in the matter of " civil and religious lib- 
erty." We have had copious quotations here from various Euro- 
pean scholars and theorists, among them that extremely extreme 



330 Superior Court of Cincinnati. 



Minor et al. v. Board of Education of Cincinnati et al. 



man, Henry Brougham. But mark, I pray you, that the men who 
founded these republics, who knew the principles by which they 
triumphed, and how a small people became the great example to the 
nations, these men entertain none of these speculative theories of 
" secularizing " education — but tell you that religion and morals 
are the only solid foundations of liberty and happiness ; and that 
your schools and seminaries should be "nurseries of true piety, 
virtue and useful knowledge." 

These were statesmen, whom the world credits with tolerably 
intelligent and practical ideas of liberty, and of the institutions by 
which liberty advances. If there ever was a practical and liberal 
statesman, if there was a man who typifies the fair average of 
American opinion at that great epoch, it was Benjamin Franklin.' 
And here is his idea of " secularizing " schools. In an Address to 
the Public, published by him, in 1789, as President of the Penn- 
sylvania Society for promoting the abolition of slavery, and the 
relief of free negroes, etc., he proposes a " plan for improving the 
condition of the free blacks," one article of which is as follows : 

"3. A Committee of Education, who shall superintend the 
school instruction of the children and youth of the free blacks. 
They may either influence them to attend regularly the schools 
already established in this city, or form others with this view ; they 
shall, in either case, provide that the pupils may receive such learn- 
ing as is necessary for their future situation in life, and especially a 
deep impression of the most important and generally acknowledged 
moral and religious principles." Franklin s Writings (Sparks' 
edition), vol. 2, 513. 

That gives you Dr. Franklin's view of a common school edu- 
cation ; and I take the more pleasure in quoting it because the 
times seem inclined for practical men. 

Just here I protest against the mistake of one of my friends 
on the other side, who seemed to take comfort in proclaiming that 
Dr. Franklin was " an arrant old heathen as ever lived ;" a fashion 
to which gentlemen of "liberal views " are much addicted. The 
"old heathen" in earlier years compiled a prayer book out of the 
Church of England's service ; but, as evidence of his fixed senti- 
ments, here is an extract from his letter to Dr. Stiles, President of 
Yale College, written expressly in answer to the question : 



Argument of Rufus King. 331 

Minor et al. -v. Board of Education of Cincinnati ct al. 

" You desire to know something of my religion. It is the 
first time I have been questioned upon it. But I can not take 
your curiosity amiss, and shall endeavor in a few words to gratify 
it. Here is my creed. I believe in one God, the creator of the 
universe. That He governs it by His Providence. That He 
ought to be worshiped. That the most acceptable service we ren- 
der to Him is doing good to his other children. That the soul of 
man is immortal, and will be treated with justice in another life 
respecting its conduct in this. These I take to be the fundamental 
points in all sound religion, and I regard them as you do in what- 
ever sect I meet with them. 

" As to Jesus of Nazareth, my opinion of whom you particu- 
larly desire, I think His system of morals and His religion, as he 
left them to us, the best the world ever saw or is like to see." 
Franklins Writings (Sparks' edition), vol. 10, 422. 

Then; th.ere is another letter in this same volume, page 281, 
supposed to have been addressed to Thomas Paine, which I beg 
leave to read entire, because every word of it goes directly to a 
point in this case : 

" I have read your manuscript with some attention. By the 
argument it contains against a particular Providence, though you 
allow a general Providence, you strike at the foundations of all 
religion. For without the belief of a Providence, that takes cog- 
nizance of guards and guides, and may favor particular persons, 
there is no motive to worship a Deity, to fear his displeasure, or to 
pray for his protection. I will not enter into any discussion of 
your principles, though you seem to desire it. At present I shall 
only .give you my opinion, that, though your reasonings are subtle, 
and may prevail with some readers, you will not succeed so as to 
change the general sentiments of mankind on that subject, and the 
consequence of printing this piece will be, a great deal of odium 
drawn upon yourself, mischief to you, and no benefit to others. 
He that spits against the wind, spits in his own face. 

" But, were you to succeed, do you imagine any good would 
be done by it ? You yourself may find it easy to live a virtuous 
life, without the assistance afforded by religion ; you having a clear 
perception of the advantages of virtue, and the disadvantages of 
vice, and possessing a strength of resolution sufficient to enable you 
to resist common temptations. But think how great a portion of 
mankind consists of weak and ignorant men and women, and of 
inexperienced, inconsiderate youth of both sexes, who have need 
of the motives of religion to restrain them from vice, to support 



33 2 Superior Court of Cincinnati. 

Minor et al. <v. Board of Education of Cincinnati et al. 

their virtue, and retain them in the practice of it till it becomes 
habitual, which is the great point for its security. And perhaps 
you are indebted to her originally, that is, to your religious educa- 
tion, for the habits of virtue upon which you now justly value 
yourself. You might easily display your excellent talents of rea- 
soning upon a less hazardous subject, and thereby obtain a rank with 
our most distinguished authors. For among us it is not necessary, 
as among the Hottentots, that a youth to be raised into the com- 
pany of men, should prove his manhood by beating his mother. 

" I would advise you, therefore, not to attempt unchaining the 
tiger, but to burn this piece before it is seen by any other person ; 
whereby you will save yourself a great deal of mortification by the 
enemies it may raise against you, and perhaps a good deal of regret 
and repentance. 

" If men are so wicked with religion, what would they be if 
without it. I intend this letter itself as a proof of my friendship, 
and therefore add no professions to it ; but subscribe simply, 
Yours, B. Franklin." 

I have gone into the history and origin of this clause in the 
Constitution for the purpose, may it please your Honors, of show- 
ing that it is no new thing, but has its roots in the early history of 
the colonies. I claim, in short, that this idea of the public school 
teaching the general truths of religion and morality, is an American 
institution, adopted early in the history of this country in place of 
the rejected idea of Church and State. There is no question but 
that a great mistake prevailed in regard to the matter of religious 
liberty, at an early period, in one or two solonies. But it is equally 
certain that at least one hundred and fifty years ago the true doc- 
trine on that subject was maintained throughout all the colonies, 
and that long before the Declaration of Independence, this thing of 
the public school teaching the elementary principles and precepts 
of religion, as the basis of the body politic, was generally understood 
as characteristic throughout the country. I trust that we shall one 
of these days get rid of the idea that this country began on the 4th 
of July, 1776. 

Having shown where this clause came from, and that it is part 
of the compact which was declared to be perpetual and unalterable ; 
having proved by the earliest records of Congress, and by the 
authority of a man, one of the most liberal and tolerant of states- 
men, that such was the usage of the country, I therefore claim 



Argument of Rufus King. 233 

Minor et al. v. Board of Education of Gincinnati ct al. 

that .instruction in all fundamental principles of religion and mor- 
ality, as provided for in the seventh section of the Bill of Rights, 
was understood on all hands, at the time the Constitution of 185 1 
was adopted, to be an integral element of common school educa- 
tion, and one of the fixed institutes of this land, linked back, 
through the Constitution of 1802 and the Ordinance of 1787, with 
the period anterior to the Revolution. On that subject the language 
of the ordinance is unmistakable testimony. 

Now, if the Court please, has it been violated ? This is not 
only a right of the citizen, but a pillar of the State, declared such 
here in this Constitution, in the Bill of Rights. These resolutions 
do oppose and conflict with the Constitution diametrically. If the 
man who drew that first resolution had had it in his mind to show 
disregard for the law thus declared, he could not have framed his 
intention in better terms. It is not merely misjudgment. It is not 
merely an unwise exercise of discretion. I say it is in direct con- 
tempt of the Constitution. It declares that schools established 
expressly under that mandate shall not be the means of instruction 
in the matter commanded. 

Now then I come to the only point in which Mr. Matthews 
approached the real issue. He sought, rather, to avoid it, on the 
two grounds, that the School Board has absolute, uncontrolable 
discretion, and that any religious instruction in public schools is 
inconsistent with freedom of conscience. 

To support the first position he quoted the seventh clause of 
the Bill of Rights down to the words, "it shall be the duty of the 
General Assembly to pass suitable laws," and there he stopped. 
And now, said he, the legislature has passed a suitable law but in 
that law has not directed that religion and morality shall be taught 
in these schools. And then he laid down a proposition for which 
no authority can be found j that is to say that, therefore, the School 
Board under that law possesses an unlimited and absolute authority 
over this matter which can not be controlled by any tribunal. Mr. 
Stallo took a broader position than that. He^takes the extraordinary 
ground that the law which establishes this School Board makes it part 
of the high legislative power of the State of Ohio. That seems very 
extraordinary indeed ; for when your Honors come to read that law, 
the act passed January 27, 1853, y ou w ^ ^ n( ^ li: 1S provided in the 



344 Superior Court of Cincinnati. 



Minor et al. v. t Board of Education of Cincinnati et al. 



very first section that this Board are constitutecUa part only of " the 
corporate authorities of the city of Cincinnati." 

Mr. Matthews argues that there being nothing in this act, — the 
General Assembly having passed no law that requires religion to 
be taught — therefore, the power of the School Board, by virtue of 
that act, to regulate studies and text-books is indisputable. But I 
say there is no board in the State of Ohio of such absolute power. 
Much less can a mere School Board assume to have such a preroga- 
tive. It is out of the question that this "part " of the city authori- 
ties can be greater than the whole ; and your Honors know that the 
whole power of the city, the City Council itself, has been enjoined 
in these Courts in cases where their discretion was as broad. If 
the City Council can be enjoined from supplying the city of Cov- 
ington with water, as an abuse of power, why shall not this School 
Board be restrained, when they have not only exceeded but done 
violence to their trust. 

But the fatal defect in the learned counsel's argument is 
that the General Assembly had no such power or discretion to 
impart. The Constitution gives the Legislature itself no choice ; 
does not say it shall pass " suitable laws " providing whether or not 
religion, morality, and knowledge shall be inculcated ; but com- 
mands it thus: ' ; Religion, morality, and knowledge being essential, 
etc., it shall be the duty of the General Assembly to pass suitable 
laws to encourage schools and the means of instruction.'''' The purpose 
of the schools, the nature of the instruction, is not left to its judg- 
ment or control. It is fixed. The Legislature has nothing to do 
with it ; and, therefore, as the gentleman said, and said truly, did 
nothing but establish the schools. If these resolutions of this 
local board had been passed by the Legislature itself, they would 
be in violation of the Constitution, and "as clearly void," as said in 
I Ohio State, 77, "as though expressly prohibited, because not fairly 
within the scope of its legislative authority." The School Board, 
even on Mr. Stallo's high ground, can not do more than the Legis- 
lature itself There is no discretion about it, either in the Legis- 
lature or the Board. The mandate is that they shall establish 
schools. When that is done, then comes the Constitution into 
each of those schools and inscribes there upon its walls these 



Argument of Rufus King. ^35 

Minor et al. -v. Board of Education of Cincinnati et al. 

golden words : " Dedicated by the State to instruction in religion, 
morality, and knowledge, as essential to good government." 

That, may it please your Honors, is the plain language of the 
whole sentence in the Constitution, and not to be frittered away by 
half reading. Nor can I be wrong in supposing that you will ascer- 
tain, by exercise of the power which the law gives the Court of 
looking about and seeing the general customs and opinion of the 
people, what the religion, the prevailing religion of the people of 
the country is. Tt is religion in that clear sense, defined in words 
which I have quoted from the lips of the great Master; "achro- 
matic" enough for any but the evil eye; but not the religion 
taught, as some of these gentlemen would have it, in sectarian 
schools. 

What the counsel for defendants propose comes to this: they 
are simply claiming here that there is an unlimited discretion in this 
School Board which entitles them to violate the Constitution. 
That is exactly the sequence of maintaining these resolutions ; a 
discretion to violate law ! Who ever heard of that proposition 
before? There is the command planted in the Constitution, which 
these men swore to maintain. It declares the motive and purpose 
of the schools, and plainly it is in some sense to replace that which 
was utterly abolished by the same section of the Bill of Rights, and 
that was the power of an established church, spreading abroad the 
word of God through its ministers. It may be that Mr. Matthews 
regards "broad religion as a broad humbug;" but such was not 
the view of the men whom your Honors have to consider — the 
men who made this law — and is directly against the judgment of 
men who were as great statesmen as the world has yet seen, and 
well knew what the true law of liberty means. This word " relig- 
ion " must here have a liberal but significant interpretation. 

As to the point of jurisdiction, we say there can be no such 
thing as a power or discretion to violate law, either in this Board or 
in the Legislature. If these resolutions are not an utter " abuse 
of power," then the words have no sense. 

We now come to the other defense, and are met by the zeal and 
fires of fanaticism itself. It is claimed, and counsel concentrate here 
all the force of their argument, that because in the first clauses of 
this 7th section of the Bill of Rights the right of conscience is pro- 



336 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

tected, therefore that overrides the last clause, and the teaching of 
religion in the public schools must necessarily succumb. But that 
is not the way to interpret Constitutions. The two clauses must, 
if possible, be construed so that both shall stand. And it is easy 
to see how all the parts of this section are to be reconciled. The 
first clauses plainly relate to the protection of -the individual, the 
last to the protection of the State. The citizen shall worship God 
as his own conscience dictates, and not be compelled to attend or 
support any church, nor shall any church have preference by law, 
nor any interference with the rights of conscience be permitted. 
Thus far the individual. Then follows the clause which, by a sin- 
gle word, rises above the selfish, and proclaims the safety of the 
community paramount to all this: "Religion, morality, and knowl- 
edge, however," mark the word, "being essential to good govern- 
ment, it shall be the duty," etc. If there be any conflict, it is 
manifest that this is the clause which must prevail. 

But I come back gratefully to the freedom of conscience. I 
am glad that there is a point, and we have reached it at last, at which 
I can join with my brethren of the other side, hand in hand. For 
here we are of one accord. We, too., are for the boon of a 
free conscience. We claim a share in that inestimable liberty. 
Not only that, but we claim freedom of conscience for all, exactly 
in these terms of the Constitution: "All men have a natural and 
indefeasible right," etc. I say the true doctrine, — for I will go clear 
through here with the gentlemen, — is that a man shall not only have 
freedom to believe, but that this doctrine must be carried out, so 
that a man may, moreover, if he must, disbelieve. The man who 
has that misfortune, though in my judgment the honest skeptic will 
rather put his hand upon his mouth and his mouth in the dust, and 
will keep his doubts all to himself and his God, this man, too, I 
say, is protected. You can not compel him to believe. Here I 
subscribe to the language of Lord Brougham: "The great truth 
has gone forth to all the ends of the earth that man shall no more 
render an account to man for his belief, over which he himself has 
no control." 

No, your Honors ; God's truth needs no favor. It wants no 
covert, no vantage point. It courts the free arena of the universe. 
Free inquiry, free speech, if you please, provided always that it be 



Argument of Rufus King. 337 

Minora al. v. Board of Education of Cincinnati et al. 

decent. And I say, let the zoologists and geologists and archaeolo- 
gists, and all these gentlemen, have their way ; the Cardiff giant, 
if you wish. Let science stretch its line and sound its plummet; 
scale the firmament, out to the "bounds of flaming space, where 
angels tremble while they gaze ;" sound the ocean's depths ; pene- 
trate earth's secrets, deep as the artesian bore can go ; search out 
all animated nature ; bring it all out, and the whole of it will but 
serve the more to praise and magnify Him " whose righteousness is 
everlasting and whose truth endureth forever." His religion needs 
no casemates ; and if his ministers and servants know their advan- 
tage they will meet these gentlemen willingly upon their own 
ground, for there they can vanquish them always. 

I repeat it, let there be freedom for all of us, from the high- 
est to the lowest in faith ; from the zenith of Damian's zealotry 
down to the nadir; down even through materialism and all extinc- 
tion of hope, even to the depth of Tom Paine, at whose vile 
blasphemy I stop. Let conscience have a "charter free as. the 
wind." 

But no ; that is not the idea of our friends on the other side. 
They are crying aloud here for conscience, but it is for their own, 
and not with the least charity for ours. There is no reciprocity, no 
love of their neighbor, in their philosophy. Every man - is to set 
up himself, his conscience, regardless of others, and the result can 
only be a repetition of the old story of the Kilkenny cats. We 
shall eat each other up. But, may it please the Court, this is not 
conscience. This is bigotry. It is the absurdest fanaticism. Con- 
science lives and lets live. It is content with its own, and seeks 
no injury of others. That is not the doctrine that prompted these 
resolutions of the School Board. In this tumult let us not forget 
that the Constitution prohibits not only " religious," but also any 
" other sect or sects" from ever having any exclusive right to or 
control of any part of the school funds of this State." " Phrase- 
ology more emphatic," says Mr. Stallo, " it would be difficult to 
devise," and he might have added " more comprehensive." There 
be " other sects," it seems, than the religious. And in these reso- 
lutions we detect a combination of both sorts. But I have shown 
that there never was a freer field for conscience than existed 
previous to the sinister combination of these parties to pass these 



33% Superior Court of Cincinnati. 

Minor et al. <v. Board of Education of Cincinnati et al. 

resolutions. Their pretenses are untrue. Nobody was injured. 
Nobody ever complained. All was free. The trouble of these 
gentlemen, then, is not for free conscience. They want it all their 
own way, and there can be but one result to such a proposition. No 
court is bound to reconcile a proposition so absurd as that every- 
body shall be endowed with the right to put his conscience in oppo- 
sition 'to everybody else. The man who has the least conscience 
is, according to this defense, to be the standard. That is what is 
here proposed. The sect in all this city who have the least faith 
are to be taken as the criterion of popular education. The theory 
of these resolutions is that public schools shall teach nothing that is 
above the level of the lowest capacity in belief; otherwise you are 
taxing that sect to support your creed. This, too, notwithstand- 
ing they are exempted by the rules of your schools from being 
present or participating in that instruction which the highest law 
declares is essential to good government. This blind self-worship 
not only sacrifices the rights and conscience of others, but foolishly 
demands that the State itself shall yield its first principles to their 
crude theories. No statesman ever gave his sanction to a govern- 
ment or polity founded upon this idea of total secularization, nor 
is it possible to sustain a system of government framed upon that 
principle. It is a chimera, fantastical as that other notion, that 
Christianity is unfavorable to a stalwart spirit of republicanism. 
John Hampden and Oliver Cromwell were singular examples. 

There is a case of conscience put forward in the answer, but 
not much pressed in argument, which, if it were not indecorous, 
would seem like jesting. It is intimated that there are persons in 
this community who are deterred on conscientious grounds from 
"employment as teachers" on account of the reading of the Bible. 
But it would be vain to search for an instance, within the memory 
of " the oldest inhabitant," of a resignation or refusal on this self- 
sacrificing ground. Be that as it may, it is enough to say that 
such a man should seek another vocation. He is no fit teacher for 
children under the law of Ohio. 

I claim, then, your Honors, that this section of the Constitu- 
tion has a clear, consistent meaning, and interprets itself thus : that 
while these first clauses are a barrier against any sectarian or 
church imposition upon the citizen, the last just as absolutely enjoins 



Argument of Rufus King. 339 

Minor et al. <v. Board of Education of Cincinnati et ah 

religious culture in the schools as a necessity of the State, and 
therefore paramount. Your liberty of conscience and belief, your 
exemption from any church establishment, is to be found in the first 
terms; but the men who drafted that ordinance, in 1787, having 
secured these great principles, carefully added that, nevertheless, 
the public safety being paramount, salus populi est suprema lex, and 
religion, morality and knowledge being essential to that end, schools 
must forever be encouraged as the means of instruction in all three, 
and in neither more nor less than in the others. That provision of 
the ordinance, faithfully and unalterably handed down to you by 
the Constitution, and wounded by these defendants, now rests in 
the care of your Honors, as keepers of the law, and there I 
leave it. 

But I am not willing to quit the case upon the mere fiat of 
the law. I am willing to show upon what I rest my faith. 

, Why are religion and morality, as well as knowledge, essen- 
tial to government ? Why was it that our fathers held to that 
sentiment ? Because there are but two principles of power in 
government. The one is the virtue of the people — the power of 
self government — that gets all its vitality out of the Bible; the 
other is the power of the bayonet. And you can not govern a 
nation upon any but one of these two principles. For I say, in 
general terms, that the nation which throws away the culture and 
support of religious- principle, throws away the only enduring 
security of self government for the masses, and must come, in no 
great lapse of time, to force. It is one thing for scholars and 
philosophers, sitting in their closets, to refine about this matter. 
Their fine-spun sentiments may do to govern Utopias ; but to 
govern States is another thing. I speak, and your Honors are to 
judge, of history, of man in the mass and in action, of the forces 
essential to guide and control nations, not in sunshine and prosperity 
only, but when storms run high and the State is distracted and rent 
by the conflict of parties maddened with passion or interest. It is 
then that safety calls for stronp-er forces than philosophy and intel- 
lect. It must be the deep, eternal forces which curb and compel 
the most trying emergencies, and which belong only to religious 
education and faith. 

I have invoked the founders of this Republic. But as 



340 Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et al. 

European opinion has been quoted, let me read from a speech of 
Count Bismarck, in the Prussian Chambers : 

''Without a religious foundation, the State is only an accidental 
aggregate of rights; a bulwark against the king; a bulwark of all 
against all. Its legislation will not be regenerated out of the original 
foundation of eternal wisdom, but stand upon the shifting sands of 
vague and changeable ideas of humanity." 

That is the practical statesmanship of the strong-handed and 
strong-headed man who now rules the destinies of Germany. But 
I am not afraid to go into the enemies' camp. I will venture to 
quote a writer who was no special admirer of Christianity, and I 
think has furnished some of the weapons of my adversaries ; but he 
was compelled to make the concession to religion which I now 
read. I refer to Jean Jaques Rousseau, from whose Treatise on the 
Social Compact , bk. 4, ch. 8, I quote this extract : 

" Now, it is of great importance to a State that every citizen 
should be of a religion that may inspire him with a regard for his 
duty ; but the tenets of that religion are no farther interesting to 
the community than as they relate to morals and to the discharge 
of those obligations which the professor lies under to his fellow 
citizens. If we except these, the individual may profess what 
others he pleases without the sovereign's having any right to inter- 
fere ; 'for, having no jurisdiction in the other world, it is nothing to 
the sovereign what becomes of the citizens in a future life, pro- 
vided they discharge the duties incumbent on them in the present. 

" There is a profession of faith, therefore, purely political ; the 
articles of which it is in the province of the sovereign to ascer- 
tain, not precisely as articles of religion, but as the sentiments due 
to society, without which it is impossible to be a good citizen or 
faithful subject. * * * The tenets of political religion should 
be few and simple ; they should be laid down, also, with precision, 
and without explication or comment. The existence of a 
powerful, intelligent, beneficent, prescient and provident Deity ; a 
future state ; the reward of the virtuous and the punishment of the 
wicked ; the sacred nature of the social contract and of the laws ; 
these should be its positive tenets. As to those of a negative 
kind, I would confine myself solely to one, by forbidding persecu- 
tion." 

There being no established church, Church and State being 



Argument of Rufus King. 341 

Minor et al. -v. Board of Education of Cincinnati et al. 

abolished, the public school is the only means left by which you 
can penetrate and infuse the whole mass of society with the princi- 
ples which these men declare to be the only safe reliance for a 
State — especially a republican State. Through the public school 
the Commonwealth easily and powerfully spreads the simple tenets of 
political religion, as Rousseau denominates it, and which he defines 
in a manner clearly adapted to our Constitution and wants. There 
must be a religious element in public education, or it utterly fails to 
supply the want. Religion affords security to government, because 
it holds men not by the uncertain allegiance of present interest or 
expediency only, but adds the constant, ever-during power of the 
still, small voice which controls the will and subdues the passions. 
Secularized education will not do it. No nation ever obtained 
even civilization, much less security and happiness, upon the mere 
light of reason or the laws of nature, unaided by a religious faith. 
Even Pagan rulers courted their priesthood and consulted the 
oracles. But what is it we Want, your Honors? It is character, 
national character, sterling public sentiment — the habit, the 
enduring, universal habit, of resisting wrong and evil; and among 
others let me instance that which seems to be the consuming pas- 
sion of the American heart, but which this Bible teaches us is the 
root of all evil, the love of money. Our people, with a servility to 
wealth which is unaccountable in a truly republican nation, bow 
down and worship it as blindly as the Israelites did the golden calf. 
Hence, the frauds and huge defalcations, the " rings " and cor- 
ruptions which we read and hear of every day. A man just from 
the penitentiary, the forger of millions, is followed by maudlin 
sympathy, as though a martyr in some great work, and that, too, 
by the public press. These things do not speak well for us, your 
Honors, and this School Board, instead of " putting down the 
brakes" upon the moral force of the schools, had better endeavor, 
by all possible help, to increase it. I beg leave to inquire what 
has turned up in this city of Cincinnati — what new dispensation — 
all at once, that encourages these gentlemen to resolve and say it is 
time to throw away these aids and restraints which our laws, and 
all experience, de'clare are essential to society ? 

\_Mr. King here called attention to the last annual report of the 
"Cincinnati Relief Union," .and read the article, p. 44, on Vice, 
23 



342 Superior Court of Cincinnati. 

Minora al. <v. Board of Education of Cincinnati et al. 

Pauperism and Crime in Cincinnati ; Its Alarming Increase ; Neg- 
lect by Parents, etc . ; and continued :] 

That, your Honors, gives you a more correct apprehension of 
the wants of the State than these resolutions. And to combat 
these evils requires stronger remedies than reading, writing and 
ciphering, called " secularized education." No merely intellectual 
education, I care not if it be the best, will serve the purpose of 
the State. It only sharpens the bad propensities. If you take the 
moral and religious instruction out of the schools, it is admitted 
that you have deprived them of all the resource which thousands of 
children have. The intellect, despite our pride and boasts, is but 
the poor vassal of the will. The heart and passions sway it at 
will ; and there is the point of danger. When was the dema- 
gogue — be it your newspaper or your stump orator — ever heard to 
address the intellect, or play upon any key but the licentious pas- 
sions and prejudices, which he well knows are sovereign I 

Now, what do these gentlemen propose to substitute ? What 
do thev propose to do for these children who have no church, no 
spiritual guide, no resort but the school-house I 

\Mr. King quoted largely from a work on the Necessity of Pop- 
ular Education as a National Object, by fames Simpson, a Scotch 
author, sometime engaged in the management of schools in Scotland, and 
forcibly depicting the inadequacy of education of the intellect merely in 
schools for the people, ^scarcely deserving the name?'' He quoted also 
this passage from a letter of Milton to Hart lib :] 

" The end of learning is to repair the ruin of our first parents, 
by regaining to know God aright, and out of that knowledge to 
love Him, to imitate Him, to be like Him, as we may the nearest, 
by possessing our souls of true virtue, which being united to the 
Heavenly grace of faith, make up the highest perfection. 5 '" 

Also, this passage from Locke's Thoughts Concerning Educa- 
tion, section 70 : 

" It is virtue, then, direct virtue, which is the hard and val- 
uable part to be aimed at in education, and not a forward pertness, 
or any little arts of shifting. All other considerations and accom- 
plishments should give way and be postponed to this. This is the 



Argument of Rufus King. 343 

Minor it al. -v. Board of Education of Cincinnati et ah 

solid and substantial good, which tutors should not only read lec- 
tures and talk of, but the labor and art of education should furnish 
the mind with and fasten there, and never cease till the young man 
had a true relish of it, and placed his strength, his glory and his 
pleasure in it." And in section 147, he adds : u Learning must be 
had, but, in the second place, as subservient only to greater quali- 
ties. Seek out somebody (as your son's tutor) that may know how 
discreetly to form his manners ; place him in hands where you may, 
as much as possible, secure his innocence, cherish and nurse up the 
good, and gently correct and weed out any bad inclinations,, and 
settle him in good, habits. This is the main point, and this being 
provided for, learning may be had into the bargain." 

But is this provided for in these resolutions ? Do these reso- 
lutions meet this, the very spirit of the Constitution ? Is this that 
education and care of the vicious, the idle, those elements most 
dangerous to society and government, the classes, if your Honors 
please, which the public school was first and specially instituted 
to reach. Nobody imagines it was needed primarily for the educa- 
tion of the better classes. The difficulty lies lower down, in a 
stratum which nothing but the public school can reach ; and there, 
the very strongest inducement for this lowlier class to attend the 
public schools is the fact that they are attended by children of the 
better order. This attraction has been found unequalled. The 
highest advance that the schools of this city ever made in influence, 
was when our public education was put up to the point which 
these defendants would now destroy, when the best men in the 
community found it to be to their children's advantage to send them 
to these schools. 

But I have too long wearied the patience of the Court. In 
all that I have said I claim that this is an American institution, this 
thing of the public school teaching religion along with, but distinct 
from, the church ; that America was the first to substitute public 
schools as a means of instructing the people in religion as well as 
knowledge ; that it was an American institution from the bep-in- 
ning ; that it has been imitated by all Europe ; that the verdict of 
all wise nations is in its favor, and that it is now proposed to be 
thrown away in the city of Cincinnati just as all the world has set 
its approval upon it. 

There has been a good deal said here about zoology. I recol- 



344 Superior Court of Cincinnati. 

Minor et a/, -v. Board of Education of Cincinnati et al. 

lect seeing a poor little blind fish, taken out of the subterranean 
river in the Mammoth Cave ; proving, as I suppose, the fact that the 
river must be subterranean, because it had no eyes whatever. 
There being no light the organ lost its purpose ; it had shrunk 
away, and there was nothing there but a slight speck and a slight 
bony process where the eye might have been. And that is what it 
is proposed to make out of the children of this city. Educated in 
a medium destitute of the blessed rays of God's light, the only 
inspiring source of virtue, brought up purposely in blindness and 
darkness, with no vision to their souls, they are to be kept here 
groping about without knowledge of the Creator and Giver of all 
these things that they are reading in these books of exact science; 
and I suppose the best of them would be in the sad, helpless con- 
dition ascribed to Humboldt by one of the orators at the late anni- 
versary of his birthday, who ended his oration, put the climax to it, 
bv declaring that Humboldt died, having discovered that the uni- 
verse was governed by fixed laws. Wondrous Eureka ! Prome- 
thean, yea, godlike science! The great Humboldt, whose mind 
could glance from heaven to earth, and who penetrated all things 
in space, expiring with the discovery that the world was governed 
by fixed laws, and yet knew not, as the poorest little child in the 
public schools in this city, simply holding the Bible in his hands, 
could have told him, who was the author of those laws: "the hand 
that made us is divine." 

Just give me the common schools of this country for two gen- 
erations and I will make it even w"hat you please. In two genera- 
tions you may make a people what you will by a well regulated 
system of public schools - y and I tell you now that there is not a 
more formidable phalanx in this town than the four hundred men 
and women who have your children under their control, and who it 
appears are now to be deprived of the power of teaching them any- 
thing like religion or knowledge of their Maker. 

\Mr. King, as an illustration of his proposition, pointed to Prussia, 
where, by means of the common school, the House of Brandenburg have 
taught the people to turn their hearts up to their king as their father, 
and have established the most solid and enduring monarchy in the 
■world ! j 



Argument of Rufus King. 345 

Minor et al. v. Board of Education of Cincinnati et al. 

I say, in conclusion, we stand, therefore, upon the proposition 
that the law of Ohio — based and preserved upon this Ordinance of 
1787, and upon principles of liberty which, by God's blessing, gave 
us independence, happiness and prosperity, and which the wisdom 
of our forefathers, and the success of their institutions secured — not 
only permits, but commands that religious and moral instruction, so 
it be consistent with religious conscience, shall: — that is the word 
of the Constitution, if your Honors please, and that is your guide — 
shall be mingled with the teachings of the common schools, and 
ought to be encouraged, and not forbidden. 

This, we say, is law for us, and it is law, if your Honors 
please, for all who come among us to dwell under that sacred tree 
under which we are living and prospering ; and it is not right, it is 
not fair, it is not grateful that we should be called upon by these 
gentlemen from other countries, to turn our backs upon the institu- 
tions of our fathers, when we have enjoyed the fruits they now 
come to share with us. And, if your Honors please, I say, as 
those stout "old English barons said upon similar occasions : " Nol- 
umus leges nostros mutari." We will stand here upon the ways of 
our forefathers. We believe in them, and, by the blessing of God, 
we will live in them and die in them. 

More : I say that equality of conscience is not the intent of 
these resolutions. I say that the true intent and meaning has been 
divulged in the argument that has been made here in support of 
them. I beg your Honors to take heed to it, that this first resolu- 
tion is to be in the hands of teachers not skilled, as my brother Mat- 
thews, in dialectics, unable like him to draw this sharp distinction 
between a "reading lesson" and "religious instruction," and will 
be executed in the literal sense of the words which you see there. 
I tell you that these speeches will be taken as the exegesis of those 
resolutions, that these speeches will be read in the public schools as 
the exposition by learned lawyers of what those rules mean ; and 
I give warning that those four hundred teachers, who have to 
sit in judgment upon these resolutions, will have no doubt as to 
their meaning, and will not accept the meaning that my friend Mr. 
Matthews has attempted to force upon them. That is the danger, 
if your Honors please. Recollect who have to act upon that resolu- 
tion. It is these ladies and gentlemen, unused to the quirks and 



346 Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et al. 

quibbles of law, and who will take these rules into the schools and 
execute them to the letter. 

Now, I say, if your Honors please, the violation of the Con- 
stitution is plain ; it negatives the Constitution in totidem verbis', 
and, sitting here in chancery, holding the protective prerogative of 
■parens patriae, as representatives of the power of the State, your 
Honors are bound to notice and uphold this sacred injunction that 
schools "shall be encouraged, as the means of instructing these chil- 
dren in religion, morality and knowledge, as the basis of the State ; 
not only for the protection of children, which is your primary 
trust, but still higher for the protection of the State from abuse of 
its authority. I call upon your Honors, not only by virtue of this 
positive injunction of the Bill of Rights, but by the wisdom and 
tradition of our fathers, to stay these resolutions by your preventive 
justice. And standing here, if I may be permitted, as next friend 
for that class of children whom this answer demands shall be 
turned out without the means, which this Constitution intended 
they should have, of becoming good citizens, speaking, if I may, 
for the thousands of that class of children yet unborn, I beseech 
your Honors not to allow this provision of the Constitution to be 
trampled under foot, but sustain it, uphold it, high above all sects, 
and give it all its vigor and power, in order that the mischief may 
be suppressed and the destruction of our schools averted. 

In conclusion Mr. King presented the following points of law on 
behalf of the plaintiff's : 

I. That the common schools are established and maintained 
by the State, expressly as the means of instructing the people in 
religion, morality and knowledge, as the basis of good government. 
This, as an article of compact in the Ordinance of 1787, has=been 
steadily adhered to ever since. 

Ohio Bill of Rights, sec. 7. 
Constitution of 1802 — Bill of Rights, sec. 3. 
Ordinance of 1787 — 3d Article of Compact. 
As to Ordinance of 'Sj, see 5 Ohio, 410 ; 9 Ohio, 52; 
17 Ohio, 409, 425. 



Argument of Rufus King. 347 

Minor ct al. -v. Board of Education of Cincinnati et al. 

2. That religion and morality, as intended by this provision in 
the Bill of Rights, are the essential and generally received princi- 
ples of religion to be derived from the Bible ; and as such, will be 
judicially recognized and upheld by the courts. 

Story on the Constitution — Abr., sec. 986 — Original, 

sec. 1865. 
Act to prevent Immoral Practices, sees. I, 4. 
1 S. & C. 447 — Amended, S. k S. 289. 
The State v. Chandler, 2 Harrington, 553. 
The People v. Ruggles, 8 Johns. 291. 
Updegraffv. Commonwealth, 1 1 S. & R. 394. 
Commonwealth v. Kneeland, 20 Pick. 206. 
Lindenmuller v. The People, 33 Barb. 548. 

3. That the Bible being the foundation and the authoritative 
exponent of the religion and morality so recognized by the Con- 
stitution as essential to government, ought to be held inseparable 
from the common school education thus enjoined — saving always 
the rights of those who conscientiously object to the reading or 
hearing of the Bible, or any particular version of it, by their chil- 
dren. 

4. But even if the exclusion of the Bible be held to be within 
the discretion belonging to the defendants in the choice of text- 
books, yet the prohibition of all " religious instruction " in the 
common schools, being a direct infraction of the terms of the Con- 
stitution, and subversive of one of the cardinal principles of the 
State government, the two resolutions passed by the defendants 
November 1, 1869, or the first, at all events, are a usurpation and 
wanton abuse of power, and, therefore, ought to be suppressed by 
the perpetual injunction of the Court. 

5. The jurisdiction of the Court is complete ; 

First. Because the defendants are not an independent or 
legislative body, but are a part only of the corporate 
authorities of the city, by the act of January 27, 1853, 
Disney, 772 — and subjected by that act to the control of 



348 Superior Court of Cincinnati. 

Minor et al. <v. Board of Education of Cincinnati et al. 

the city council in various particulars. As such, they 
are, therefore, clearly within the special statutory control 
given to the Court by sec. 159 of the Municipal Code. 
66 Ohio Laws, 175. 

Second. But independent of this they are subject to the broad, 
general jurisdiction of the court. Sco field v. Eighth 
School District, 27 Conn. 499 ; 2 Story Eq'y Jurisp. 
sec. 955 #, and sec. 143 1 ; 4 Mylne & Craig, 254; 37 
Penn. St. 385 ; 2 Humphrey (Tenn.), 428 ; 24 Iowa, 
266 ; 14 Vesey, 245 ; I Duer, 451 ; 5 Selden, 263. 

The claim that they are invested with absolute discre- 
tion, by the act of January 1853, can not ^ e maintained, 
because the act does not purport to confer that power. 
If it did, the act itself would be a nullity, because the 
Legislature had no such power or discretion, and could 
not confer it upon die defendants. 1 Ohio St. 77. 

6. The Constitution, and not the Legislature, settles the 
question. It gives no power over this matter to the Legislature. 

It declares " it shall be the duty of the General Assembly to 
establish schools, and means of instruction ; " not that it may but 
shall; and not that it shall establish schools and may direct what 
shall be taught ; but it imports that religion, morality, and knowl- 
edge, all, shall be taught therein. The Legislature may appoint 
the means by which the object shall be obtained, but could not 
forbid religion or morality, any more than knowledge, as a subject 
of instruction. All stand together. 

7. If these propositions are true, it follows that these reso- 
lutions would be a violation of law, and abuse of power, even if 
enacted by the General Assembly : and whether regarded as a defect 
of power, or a wrongful exercise of power, either way it is an 
abuse of power, and within the control of the court. 1 Ohio St. 

77- 

8. The cases of Bloom v. Richards, 2 Ohio St. 387, and 
McGatrick v. IVason, 4 Ohio St. 566, do not apply. Neither 



Argument of Rufus King. 349 

Minor et al. -v. Board of Education of Cincinnati et al. 



case involved the construction of sec. 7 of the Bill of Rights ; 
nor can the dicta of judges in those reports be put in opposition to 
a plain mandate of the Constitution. 

9. The injunction prayed by the plaintiffs is not in the nature 
of a mandamus. The court is not asked to compel, or command 
the defendants what they shall do, but to say what they shall not do; 
to forbid and prevent the enforcing of these illegal resolutions, by 
declaring them null and void. Lumley v. Wagner, 1 DeGex, M. 
& G. 604; Fry on Specific Performance, sees. 555-6-7. 



Note to page 300 — Marcus Aurelius. — Justin Martyr was another 
distinguished victim of this bloody moralist. The signal martyrology of 
this reign, shows the imperial hand. Notwithstanding Mr. Hoadly's jus- 
tificatory note, and Mr. Longfellow's poetic sanction, Aurelius was but a 
hypocrite in professing to " love justice," and to "respect, most of all, the 
freedom of the governed." I agree his character is " not an open ques- 
tion." Gibbon himself dismissed it by saying: "Marcus despised the 
Christians as a philosopher, and punished them as a sovereign." See Fall 
of Rom. Emp.y ch. 16. Dean Milman, whose review is full and fair, says, 
."his acts are at issue with the sentiments expressed in his grave and lofty 
meditations." Hist, of Christianity, bk. 2, ch. 7. These same Medita- 
tions praise the fidelity and manners of a Faustina. 



Superior Court of Cincinnati. 



John D. Minor et als., 

Plaintiffs, 

VERSUS 

The Board of Education of 

the City of Cincinnati 

et als., 

Defendants. 



In General Term. 



ON RESERVATION. 



The Court assembled in General Term on Wednesday, Feb- 
ruary 15th, and delivered their several 
Opinions, as follows : 



OPINION OF JUDGE HAGANS. 



The record of this cause shows that it was reserved here for 
the opinion of this court upon all the questions which it presents. 
The cause was argued to us at the November Term, 1869, with 
great ability and learning. And, as the case presented many novel 
questions, with few or no precedents directly in point, it is not sur- 
prising that the argument took a very wide range, and embraced 
considerations that were thought then to bear more or less upon 
those questions. It is not criticism to say that some confusion 
exists in the arguments of counsel, in that they do not always care- 
fully distinguish the wide difference between sects and sectarian- 
ism, on the one hand, and Christians and Christianity, on the 
other. Nor is it criticism, nor a curious fact — though it is a fact — 
that the arguments for the plaintiffs were mainly directed to the 



2$i Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et al. 

first of the resolutions which are the subjects of this controversy, 
while those for the defendants were mainly directed to the second. 
For, we do not understand that either of the parties to this suit, 
has abandoned the one or the other of the two resolutions, but rely 
upon both of them. And, finally, the difficulties that surround the 
questions involved in this cause do not seem, upon a close inspec- 
tion, to be very great ; certainly not so great that they may not be 
satisfactorily solved according to the principles of the law, and far 
less than the transcendent importance of the questions themselves. 



I. 



The first question that presents itself is upon the proposition 
of the plaintiffs, that this Court has power to hear this cause and 
grant the relief demanded. Waiving all technical objections, and 
casting aside mere verbiage, it is not so. much a question of the 
jurisdiction of the Court to hear and determine the controversy, 
for the necessary parties, plaintiffs and defendants, and the subject- 
matter, are before us ; but it is a question of power merely, though 
the power of a Court is a necessary part of its jurisdiction. Is 
this a- case for the equitable interference of the Court ? 

The propriety of the exercise of this power in this cause 
depends upon the proposition, that it is within some one of the 
familiar principles of equity jurisprudence in this class of cases. 
If, in all other respects, there be no objection to the exercise of 
the power of the Court, to authorize its interference, " it must be 
shown," as is well stated by the plaintiffs' counsel, p. 27, "that 
the action of the Board of Education is illegal, either by reason of 
positive prohibition or the entire absence of statutory authority, or 
that in the exercise of power over a subject within their general 
control, the defendants have acted so capriciously, so wantonly, so 
injuriously, as to warrant the Court in holding that their action was 
not based upon a proper sense of duty, and that it is therefore 
unlawful and void. The plaintiff's must make a strong case ; the 
right must be clear; the threatened injury great, with the entire 
absence of any other remedy than that which is here invoked." 

To the exercise of the power of the Court in this case it is 



Opinion of Judge Hagans. ^S3 

Minor et al. v. Board of Education of Cincinnati et al. 

objected that the injunction of the Code (2.S. and C. 1012, sec. 
237) " is a command to refrain from a particular act ; " that imme- 
diately upon the passage of the two Resolutions of the Board in 
question, the old rule was repealed and the new one promulgated, 
and that therefore there is no act from which we can command the 
defendants to refrain ; and that if there be reason for the exercise 
of any power at all, it must be either in the direction of forming 
a new rule for the government of the common schools, or of 
restoring the old one, which would be rather the office of a man- 
damus. A reference to the prayer of the petition (p. 10) will show 
the precise extent of the relief demanded, and that the plaintiffs 
ask for nothing affirmative. To this objection there are two 
answers. First, that it assumes that the Board had the legal power 
or discretion to pass the resolutions, which is the very matter to be 
determined ; and second, that the pleadings are not framed with 
any such view, and even if they were, that this would not be a 
case to authorize a mandatory injunction as a measure of final 
relief. 

Without stopping to discuss any other question made in this 
branch of the case, it will suffice to state generally, that a refer- 
ence to our statutes and the authorities shows clearly that the Court 
not only has the power in this case of granting the relief demanded 
by the plaintiffs, if the case falls within any one of the principles 
of equity jurisprudence already stated ; but that the defendants are 
subject to its exercise. 

The State of Ohio v. The Gin. Gas Light & Coke Co. (to be. 

reported in), 18 Ohio St. R. 
Disney's Laws and Ordinances, 772. 
66 Ohio Laws, 175 ; 27 Conn. 499-504. 
2 Story's Equity Jursp. 955, and p. 1341. 
Hill on Trustees, 482 ; Lewin on Trustees, 538, 543. 
2 Humphreys, 428 ; Fry on Spec. Per. 555-6-7. 
Lumly v. Wagner, 1 De Gex, M. & G. 604. 
DeManneville v. Crompion, I V. & B. 354, 359. 
Frewin v. Lewis, 4 Mylne & C. 254. 
Freeman v. School Directors, etc., 37 Penna. 'St. 385. 
Clark v. Board of Directors, 24 Iowa, 266. 



354 Superior Court of Cincinnati. 

Minor et al. "v. Board of Education of Cincinnati et al. 

I Duer, 451 ; 5 Selden, 451 ; 14 Vesey, 245. 
Robinson v. Chartered Bank, I Eq. Cases, L. R. S. 32. 
Weston's case, 6 Eq. Ca. 238. 
Regina v. The Bailiffs of Ipswich, 2 Lord Raymond, 440. 

We are remitted then to the consideration of the principal 
question underlying this case. 



II. 

Had the Board of Education the power to pass the resolutions 
complained of? Is the action prohibited ? Or, if it had that 
power, has it been abused ? These are the vital inquiries presented 
to us by the pleadings and proofs, and we need consider no others. 

For the purpose of convenience and brevity, these questions 
will be considered together in their application to the case. 

1. And here the plaintiffs are met at the very threshold of 
their complaint, by tv/o cases decided by the Supreme Court of 
Ohio, viz: Bloom v. Richards, 2 Ohio State R. 387, and McGat- 
rick v. Wasson,^. Ohio State R. 571 ; in which the Court held that 
neither Christianity nor any other system of religion, is any part of 
the law of Ohio, and that our statute relating to the observance of 
the Sabbath " would not stand for a moment, if its sole motive was 
to enforce the observance of the Christian duty of keeping that day 
holy." Besides the alleged objection that there are obiter dicta in 
these decisions, and that the Court overlooked at least suggestive 
intimations in one or two previous cases, it may be sufficient here 
to say, that if the pleadings in the case at bar, were framed with a 
view of demanding affirmative and mandatory relief and if the 
Court could grant it, those cases would be entitled to their proper 
weight, by which we would be bound. It is not perceived, that as 
this case presents itself fo us, the two cases referred to, have either 
any force or pertinence. But more of this presently. 

2. It is admitted that the common schools of Ohio, are in 
operation under the present Constitution, adopted in 1 851. The 
last sentence of the seventh section of the Bill of Rights declares 
that : 



Opinion of Judge Hagans. 2SS 



Minor et al. -v. Board of Education of Cincinnati et al. 



"Religion, morality and knowledge, however, being essential 
to good government, it shall be the duty of the General Asseinbly to 
pass suitable laws, to protect every religious denomination in the 
peaceable enjoyment of its own mode of public worship and to 
encourage schools and the means of instruction." 



The Legislature has nowhere defined the purposes for which 
our Common schools were established, has not prescribed text- 
books as a course of study, the discipline, nor any thing else relating 
to the administration of the system. Now, it is claimed, that what- 
ever the Board of Education may " choose to omit in reference to 
the manner of conducting the exercises of the schools, the subjects of 
instruction, the extent to which that instruction shall be carried, the 
manner in which it shall be imparted, the persons by whom it shall 
be given, the times, places," and text-books ; that these things have 
been left by the Legislature absolutely at their disposal ; that inasmuch 
as the Legislature has not required those things provided for in the old 
rule of the Board of Education, though it might be constitutional 
for the Legislature to make that requirement in pursuance of the 
duty enjoined in the Bill of Rights : that the Legislature, having 
thus left the full and unlimited discretionary power to act or not, 
in these respects, with the Board of Education, to whom no con- 
stitutional duty is addresse'd and upon whom there is none enjoined, 
therefore, to grant the relief demanded by the" plaintiffs, would be 
to usurp the functions of the School Board ! The Legislature may 
refuse or omit^to pass u suitable laws," " to encourage schools and 
the means of instruction," and thus the duties imposed upon the Leg- 
islature by that important declaration of the Bill of Rights, be some- 
how remitted to the uncontrolled discretionary action of the School 
Board, subject only to the periodical elections of the members of the 
Board of School Trustees by the people : and that, therefore, there 
is no judicial power that can reach or remedy the difficulty. A 
novel predicament truly ! While therejs some truth in these prop- 
ositions, there is a -great deal more of error. There are two answers 
which dispose of the objections that stand in the way of the farther 
consideration of this case : — first, the Legislature has passed " suit- 
able laws " for the establishment of common schools, in pursuance 
of the duty enjoined by the Bill of Rights; and, second, the 



35& Superior Court of Cincinnati. 



Minor ct al. -v. Board of Education of Cincinnati et al. 



propositions contain the assumption that the School Board may do, 
what it is claimed the Legislature can not do. The Board has 
unlimited discretion in the premises, it is said, without regard to the 
Bill of Rights, and the School Board can not be interfered with, in 
the exercise of a lawful discretion. Undoubtedly there is no judicial 
power to restrain even the erroneous judgment of the School Board, 
lawfully exercised. Donahoe v. Richards, 38 Maine, 379. But the 
argument makes the creature greater than the creator ; and assumes 
the very question in controversy, to which thus far we are contin- 
ually remitted, and by which the plaintiffs', case must stand or fall. 
The Constitution, and not the Legislature or the School Board, 
must determine this question. 

3. Let us now recur to the resolutions complained of. We 
shall have no need of the other evidence adduced in the cause, 
except incidentally. 

"Resolved, That religious instruction and the reading of reli- 
gious books, including the Holy Bible, are prohibited in the com- 
mon schools of Cincinnati ; it being the true object and intent of 
this rule to allow the children of the parents of all sects and opin- 
ions in matters of faith and worship, to enjoy alike the benefit of 
the common school fund. 

"Resolved, That so much of the^regulations on the course 
of study and text-books in the Intermediate and District Schools 
(page 213 Annual Report), as reads as follows: 'The opening 
exercises in every department shall commence by reading a portion 
of the Bible by, or under the direction of, the teacher, and appro- 
priate singing by the pupils,' be repealed." 

The resolutions do not say the religious instruction heretofore 
given, etc., in the common schools is prohibited, though there is a 
strained and intricate sense in which they may be so understood. 
Doubtless the Board desired to avoid the appearance of saying so. 
But even if this were the fair construction, inasmuch, as has already 
been stated, as the plaintiffs do not ask affirmative and mandatory 
relief, and inasmuch as we could not grant that relief if they did, it 
does not seem to us necessary to the determination of the case to 
consider that view of the resolutions. Still there is a sense in which 
it may be proper to consider it hereafter. 

Quite a wide difference among counsel arose on the argument 



Opinion of Judge Hagans. 357 

Minor et al. -v. Board of Education of Cincinnati et al. 

as to the true intent and meaning of these resolutions. Without 
farther calling attention to these differences of construction, it may 
suffice to say, that the resolutions and the differences about them, 
resolve themselves into a prohibition of religious instruction and the 
reading of religious books, including the Holy Bible, with appropriate 
singing, in the common schools of Cincinnati ; or, in fewer words, a pro- 
hibition of " religious instruction." That is the proposition of the 
resolutions, and everything else in them is either an incident to, or 
a corollary from, it. They probably mean more ; but they do 
mean that ; and that is enough for the purposes of the case. In 
this the true aspect of these resolutions, it does not matter, when 
we come to consider the questions' presented by the pleadings and 
proofs, whether the School Board had ever, before their passage, 
provided for any religious instruction in the common schools of 
Cincinnati, or not. We have nothing to do, as the cause is pre- 
sented to us, with any rule, text-book, policy, or management of 
the schools, or any religious instruction, or its abuses, that may 
have been adopted or introduced by the School Board, prior to the 
passage of these resolutions ; nor with their operation or conse- 
quences, however illegal, inequitable, or even disastrous, they may 
have been. It will be time enough to consider those things, or any 
of them, when presented in a proper case, which, it may not be 
amiss to suggest, could have been very easily done, in several forms. 
It seems to have been supposed by counsel, that we were to try the 
validity of the old rule of the School Board, mentioned in the second 
resolution, as to the practice which had thereby obtained in the 
management of the schools ; and that we were, somehow, to deter- 
mine whether that practice was there as a matter of right, though 
there should be nothing in the issues presented by, the pleadings 
that would authorize such a determination. It can not be that we 
are to make a case that does not appear in the pleadings, and then 
decide it, either to suit the desire of counsel, or fit their arguments. 
If we should do so unnecessary a thing, our judgments would be 
mere obiter dicta, and of no more force or value than the opinions 
of any other equal number of citizens. 

It will at once be seen that a very large part of the argument 
has wandered from, or has no pertinence to, the real question at 
issue. Such are the historical references to sects, and their well, 



358 Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et al. 

and, especially, their ill-doing: and those parts of the discussion 
relating to the truth or falsity of the Christian religion, and the 
authority and canonicity of the Holy Scriptures : questions which 
can not be authoritatively decided in a court of justice, but which 
are of far less moment, than the bearing and conduct of our indi- 
vidual lives. 

Stripped, then, of all verbiage, and analyzed to their constitu- 
ents, the pleadings and proofs present the bare issue, whether reli- 
gious instruction can be prohibited from the common schools of 
Cincinnati, by the School Board. And this issue must be judged 
by the Constitution of the State. And here it will be necessary to 
refer again to the seventh section of the Bill of Rights : 



" All men have a natural and indefeasible right to worship 
Almighty God according to the dictates of their own conscience. 
No person shall be compelled to attend, erect or support any place 
of worship, or maintain any form of worship, against his consent ; 
and no preference shall be given, by law, to any religious society: 
nor shall any interference with the rights of conscience be per- 
mitted. No religious test shall be required as a qualification for 
office, nor shall any person be incompetent to be a witness on 
account of his religious belief; but nothing herein shall be con- 
strued to dispense with oaths and affirmations. Religion, morality, 
and knowledge, however, being essential to good government, it 
shall be the duty of the General Assembly to pass suitable laws to 
protect every religious denomination in the peaceable enjoyment of 
its own mode of public worship, and to encourage schools and the 
means of instruction." 

The provisions of this section are all pregnant with meaning, 
and must be construed together. There is ample protection to 
those who believe in Almighty God, and to those who believe in 
nothing, and to those of all shades of opinion and belief between, 
with a guarantee of the freedom of conscience to all. There is the 
complete defense, with which the citizen is surrounded, and his 
rights, in these respects, secured beyond all hazard or conjecture. 
The reason of the law may be this: that the religious belief of the 
individual, -or, if he be a nullifidian, then his no-belief, is so much a 
part of himself, and constitutes so important a constituent of his 
daily life, that it is of the highest moment, not only for his own 



Opinion of Judge Hagans. 359 

Minor et al. v. Board of Education of Cincinnati et al. 

happiness, but even for the safety of the State itself, that perfect 
freedom and security should be assured to him. The terrible reli- 
gious persecutions and wars in Europe and elsewhere, to which 
such eloquent allusions were made in the argument, and which 
stand as a perpetual shame to, and furnish irresistible arguments 
against, sectarianism, as such, taught our fathers those lessons 
which they have embodied in the fundamental laws of all the States. 
It is one of the glories of our country, that we have no religious 
establishments : and our experience has not only demonstrated the 
wisdom and justice of these principles, but the success of our 
example is being felt all over the world. 

Thus far, this section of the Bill of Rights has in view the 
safety, security, happiness, and freedom of the conscience of, the 
individual citizen. Then it proceeds : " Religion, morality and 
knowledge, however, being essential to good government, it shall 
be the duty of the General Assembly to pass suitable laws, to 
protect every religious denomination in the peaceable enjoyment 
of their own mode of public worship, and to encourage schools and 
the means of instruction." As if the framers of the Constitution 
had said to us, we have already guaranteed the freedom of con- 
science and conduct to the citizen, by negative provisions, now, pos- 
itively. " Religion, morality, and knowledge, however," notwith- 
standing, at all events, "being essential to good government,"- th 
greatest safety of the State and the highest freedom and happiness 
of the citizen, how shall these essentials be obtained and secured to 
it ? — its subjects being made up of all sects of religious, belief, 
and of no belief:' at all, whose consciences, for which we have 
already provided the amplest freedom, are the tencerest part of their 
being, and from which, judging the future by the past, we have 
reasons to apprehend danger to both the safety of the state and the 
security of the citizen. 

The constitution furnishes two answers to this question and 
provides two modes of reaching the declared end : " It shall be 
the duty of the Legislature, to have suitable laws," 

First. " To protect every religious denomination in the peace- 
able enjoyment of its own mode of public worship." 

This provision seems to have been entirely overlooked by 
counsel ; but it is one full of meaning in this connection. It will 



360 Superior Court of Ohio. 

Minor et ah <v. Board of Education of Cincinnati et ah 

be observed that in the prior Constitutions of Ohio, this provision 
does not appear; but the framers of the present Constitution justly 
thought these agencies too valuable and essential to good govern- 
ment, to be without positive injunctions upon the Legislature to 
pass laws for their protection. 

The spirit that actuated the framers of this provision, is per- 
haps, illustrated by an anecdote of John Wesley, who, in a dream, 
visited hell, and found members of every religious sect there, and 
afterward visited heaven, and found no members of any religious 
sect there — nobody but Christians. Here then we have an unmis- 
takable clue to the "religion, morality and knowledge"' of the 
Constitution, which are essential to good government. And it is an 
undeniable fact, that in, and as part of every form of public worship, 
in the pulpits and on the platforms, and in the Sabbath schools of 
all sects, every question of religion, morals, science, literature, art, 
politics, and what not, have been freely discussed and taught, and 
they have exerted a powerful influence on the government, and 
have contributed very largely to making it what it is — the boast of 
modern civi lization. These sects have been one of the most 
convenient and effective conservators of the public morals and 
agents for the diffusion of knowledge ; and thus they have been 
the leaven of society, and oftentimes, by the sanctions of the mor- 
ality they teach, the mainstays of good government. Instances 
will occur to every one. This may be regarded as one reason for 
National and State Thanksgivings and Fast-days ; and for making 
Christmas a legal holiday. Accordingly, there will be found in 
our statute books, legislation for the protection of religious denom- 
inations in the peaceable enjoyment of their own mode of public 
worship, as well as a variety of cognate acts, having more or less 
relation to the same general end. There shall be no respect to the 
consciences or opinions of nullifidians, or other sects of belief, by 
law, nor shall any rights of conscience they have, be allowed as 
against the "peaceable enjoyment of their own mode of public 
worship," by " every religious denomination," and the reason, as 
declared by the Constitution, is, because " religion, morality and 
knowledge," are essential to good government. 

As another, and the last mode which the Constitution enjoins 



Opinion of Judge Hagans. 361 



Minor et al. -v. Board of Education of Cincinnati et al. 



on the Legislature to provide for reaching the desired end, is 
enacts, 

Second. "And" — mark the copulative conjunction — " to 
encourage schools and the means of instruction ; " and according 
to sec. 2, art. 6, the Legislature is to " secure, by taxation or other- 
wise, a thorough and efficient system of common schools through- 
out the State." 

Here, it will be observed, the words " not inconsistent with 
the rights of conscience/' which appear at the end of a similar 
clause in the Constitution of 1802, are omitted; perhaps, because 
the rights of conscience had been abundantly guaranteed by what 
preceded in the present Bill of Rights, or perhaps, the omission may 
be significant as strengthening the construction we give this clause. 

In pursuance of this duty enjoined by these clauses, the Legis- 
lature has established a system of common schools for this city, as 
will be seen by the various acts which were referred to in the argu- 
ment. See pp. 109-112. 

It is argued, that applying the same reasons 'and the same 
construction to these clauses, that we have applied to the one 
immediately preceding, conflicts with those other clauses in the 
same section relating to the freedom of the- conscience. While 
all religious denominations may flourish and be secure under the 
protection afforded for the " enjoyment of their own mode of pub- 
lic worship," and while they get along together in tolerable har- 
mony, or, at least- without any trouble with the State, here you 
come to the domain of conscience, into which you must not 
enter. And our attention is called to the closing clause of sec. 2, 
art. 6, of the Constitution, "but no religious or other sect or sects, 
shall have any exclusive right to, or control of, any part of the 
school funds of this State," in connection with the declaration of 
the closing- sentences of the first resolution. 

And here seemed to be the great stress of the argument, a 
large part of which would have been suitable in a convention 
engaged in revising the frame of the fundamental law : it is entitled 
to no force in a court whose duty it is to construe and enforce the 
law as it is. 

It will be the most convenient to consider objections and con- 
strue these provisions together. 



362 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati ct al. 

It is argued that the introduction of religious teaching, as 
such, into the common schools, is not necessary, because natural 
religion, or the religion of the natural heart, is quite enough to 
answer the purposes of the Constitution ; that it is perfunctory ; 
that it is a solemn act of religious worship ; that heartburnings, 
jealousies and violations of tender consciences will follow ; that 
around the conscience the Constitution has thrown its bulwarks 
and made it the citidal of the freedom of the individual ; that it 
compels a support of public worship, etc., without consent and 
against conscience ; that the exact sciences, etc., are sufficient. 

Some of these are considerations of the most momentous 
importance, and deserve a careful judgment. 

First. An obvious distinction obtains between those provisions 
of the Constitution which assure the protection of the man, and those 
which are purely designed for the security of the State. One of 
those radical things necessary for that security is, the homogeniety 
of its subjects, not in matters of faith, but as citizens. Whatever 
tends to break down classes, clans, or nationalities, as such, among 
our people, js of the highest importance, and is thoroughly in 
accordance with the spirit of our institutions ; so that it shall be our 
greatest pride, not that we are Protestants, or Atheists, or Catholics, 
or Jews, or Mormons, or of any other, or no, faith, nor yet that we 
are, or have been, Germans, Irish, English, Swedes, or Chinese, 
but that we are American citizens. And this is the more important, 
as our territory has increased, and is likely to be increased. The 
common school, it is admitted, has a powerful tendency in that 
direction. Taking; the children at an age when the mind is the 
most easily impressed, and the aims and affections the most readily 
molded for the purposes of the State, no wonder the framers of 
the Constitution, profoundly impressed with the inestimable value 
of these instrumentalities, should have made the completest pro- 
vision for the efficiency and thoroughness of schools. With a 
single stroke of the pen they developed the true philosophy of our 
government, and put in motion those irresistible forces to secure 
the unity and integrity of the populations in our midst. The wide 
difference between the culture and the happiness of the palace and 
the hovel, must not be seen here, as in the old world ; but all are 
to be entitled alike to the munificent provision, which the State 



Opinion of Judge Hagans. 363 

Minor et al. -v. Board of Education of Cincinnati et al. 

makes in this direction ; and our common humanity is to be ele- 
vated to the highest pitch of freedom and civilization. 

Second. The State is necessary to society and had its existence 
by nature. It is aboriginal, 

" The State being part of society in which the ideas of right 
and the means to obtain and protect it are more or less clearly 
developed, it exists, likewise, of necessity. Man can not live with- 
out the State ; it is necessary to his nature. * * * And what 
is this nature ? the imprint of all created things stamped upon 
them by their Creator ; the vital principle of life He laid down 
as the foundation of their essence and being. 'Laws,' says Har- 
rington in his Political Aphorisms, ' are founded in nature. Nature 
is God.'" Lieber's Political Ethics, vol. I, p. 170. 

And .this was Aristotle's idea. Now, Religion has exactly the 
same divine origin. Both the State and Religion grow out of the 
same element of the human soul ; and they can not, therefore, be 
separated, or treated, one as independent of the other. Hence, we 
shall find that religion of some sort, was always a necessary adjunct 
of the State, furnishing both bonds and sanctions, as the pledges of 
its safety and perpetuity. And, just in proportion as those bonds 
and sanctions were weak, growing out of the relative purity of the 
religion of the people, more or less force was necessary for govern- 
ment. But there never was a State that existed long without the 
bonds and sanctions of some religion. The mistake of most govern- 
ments has been, that the State has allied itself with Religion ; has 
erected establishments with a view of producing uniformity of 
faith ; an alliance that has been hurtful to both of the parties to it. 
But while the State and Religion are thus inseparably connected with 
each other in their origin, and necessary to each other's existence 
and perpetuity, their objects, spheres, means and ends are widely 
different. 

Third : The necessary connection of Religion with the State, 
is so obviously set forth and asserted in that clause relating' to the 
duty of the Legislature to pass suitable laws to protect " every relig- 
ious denomination in the peaceable enjoyment of its own mode of 
public worship," to secure that " religion, morality, and knowledge, 
essential to good government," that it needs only to have the 
attention called to it. Now, the State taxes all citizens to admin- 



364 Superior Court of Cincinnati. 

Minor et al. -v. BoarH of Education of Cincinnati etal. 



ister, and enforce the legislation for the protection of public 
worship. That can not be justified on any other ground, than that 
"religion, morality, and knowledge, are essential to good govern- 
ment." No Legislature can deprive any religious denomination of 
that " protection in the peaceable enjoyment of its own mode of public 
worship." Nor, would it be constitutional for the Legislature, or 
any other body, to undertake to prohibit any religious denomina- 
tion from furnishing religious instruction, by a law or ordinance, 
commanding it to refrain from, or to prohibit, the reading of the 
Bible, or any other confessedly religious book, in public worship, 
on the ground that somebody's conscience would be thereby vio- 
lated. Again, the exemption of church property from the payment 
of taxes, which amounts annually to a very large sum, thereby 
increases the burdens thrown upon the population at large, of all 
sects and no sects ; and is justifiable upon the principles suggested. 
The State, however, has nothing to do with any question as to modes' 
of worship, or doctrines, whether orthodox or. not, but with a sel- 
fish, yet paternal care, looking to its own safety and perpetuity, 
mainly, stretches out its protecting arm over all alike ; and in 
just so far as common compulsory taxation is necessary to insure 
that protection of the laws to public worship, and to make up the 
exemption of church property from taxation, just in so far are we 
all, in a sense, technical and remote it is true, but appreciable, " sup- 
porting places of worship and maintaining forms of worship against 
our consent," and against conscience. 

Fourth : For like reasons, the Constitution enjoins the encour- 
agement of schools and the means of instruction, and that the sys- 
tem of schools shall be made, thorough and efficient. While the 
elementary principles of religion are in the human soul, as arith- 
metic or any other science is in the human mind, they need devel- 
opment and direction for the good of the State, and the highest civ- 
ilization and happiness of the subjects ; and that is education, 
instruction. If religious development and direction, then it is "re- 
ligious instruction." And it is this religious instruction which the 
State has declared essential to good government, and the means of 
it which the Legislature is to encourage, that these resolutions 
prohibit. 

The State proposes to use both instrumentalities mentioned in 



Opinion of Judge Hagans. 36$ 

Minor et. al. <v. Board of Education of Cincinnati et. al. 

the Constitution, to secure its ends — instrumentalities so closely and 
intimately connected, that they may never be divorced ; but the 
one protected, and the other encouraged, by a paternal legislation. 
And this is strictlv according to the canons of constitutional inter- 
pretation, to which it may be well here to refer. 

The clause of the seventh section of the Bill of Rights, has 
its antecedents, and it's two consequents, the latter being connected 
together with the copulative conjunction, showing that they are 
both to be used and construed with reference to the former. The 
very first and fundamental rule of interpretation is, that the instru- 
ment is to be construed according to the sense of the terms and the 
intention of the parties, and to gather that intention, where the words 
are doubtful even, light may be obtained from contemporary facts, , 
antecedent mischiefs, from known habits, manners, and from other 
sources. 

Construing this clause with sec. 2, art. vi, of the Constitu- 
tion, another rule of interpretation is " that the natural import of a 
single clause, is not to be narrowed, so as to exclude implied powers 
resulting from its character, simply because there is another clause, 
which enumerates certain powers which ought otherwise be deemed 
implied powers within its scope. The affirmative specification does 
not always exclude all other implications." 

"Constitutions are not designed for metaphysical or logical sub- 
tleties, for niceties of expression, for critical propriety, for elaborate 
shades of meaning, for philosphical acuteness, or judicial research ;" 
but their words are to be construed in their plain, obvious, common 
sense, unless the context furnishes some ground to control, qualify, 
or enlarge them. 1 Story on the Constitution, 400, 402, 449, 
451, 455 ; and there are numerous decisions in Ohio to the same 
effect. 

Fifth. The connection of the State with Religion, and the 
relations of both to the conscience, as set forth in our Constitu- 
tion, are so tersely shown in an article in The Bibliotheca Sacra, vol. 
xiii, No. 52 written by Dr. Seelye, that its adoption here needs no apol- 
ogy, though perhaps its expressions are not always strictly accurate : 

" The authority of the State may never be subordinated to 
the individual conscience. The State has its own end, of highest 



366 Superior Court of Cincinnati. 

Minor «. al. i<. Board of Education of Cincinnati et al. 

freedom ; government has its end, of securing to its subjects the 
enjoyment of this freedom. The State uses Religion as a means to 
this end ; but religion itself is never an end with the State. 
Every thing relating to the moral and Religious life of its subjects, 
is of interest to the State, only so far as the State can use it for its 
own ends. The State has nothing to do with the inner character, 
and cares nothing about this, so long as the outward action pleases 
it. To the individual, conscience is of more importance than the 
State ; but to the State, nothing is so important as its own suprem- 
acy. If the will of the State come in conflict with the will or 
the conscience of an individual, the individual may suffer martyr- 
dom, but the State may not waver. That the safety of the public 
is the supreme law, is a maxim of universal application, and liberty 
of conscience may never interfere with the public weal. 

" The real difficulty in this question lies in confounding two 
things radically different. The State is for time ; conscience, for 
eternity. The State knows nothing higher than itself; conscience 
is responsible to God. With the State, religion is a means ; with 
conscience, it is an end. When, therefore, these two spheres 
come in hostile conflict, we need not ask which should yield to the 
other; each must triumph on its own ground; the State, for this 
world ; conscience, for the next ; the State enforcing its own 
claims, and conscience adhering to the claims of God ; the State 
using conscience as a means, and conscience triumphing in it as an 
end. 

"Another point should here be noticed: Any argument 
which affirms a connection of the State with religion, and the duty 
of the State to maintain its religion, is very apt to be met with the 
objection that this might sanction any extent of religious persecu- 
tion. But the objection overlooks some of the principles we have 
advanced, and has no force against the others. Religion is not, in 
any proper sense, an end of the State. The State, though having 
its ground in the spiritual or religious element in humanity, has no 
aim beyond this present life. Its relations are altogether to man- 
kind as an organized community ; and its peculiar and entire 
province is, to guide the working of this community according to 
the highest civilization and freedom. This is its true and highest 
end ; and while it may use every thing else subordinately to this, it 
may use this for -nothing. Religion may be employed by the State 
as a means to secure the end of civilization and freedom ; but 
these latter mav never be yielded to subserve any religious advance- 
ment. With the individual, religion is primary and an end ; with 
the State, it is only secondary, and a means. To suppose that there 
could be any other true relation between the two, would make the 
State a nullity. Hence, whenever the demands of civilization and 



Opinion of Judge Hagans. 367 

Minor et al. -v. Board of Education of Cincinnati et al. 

of freedom are disregarded, and the State tramples on these inter- 
ests for *the sake of any religious considerations, it has gone beyond 
its true bounds, and altogether transcended its legitimate authority. 
We may say that the State in such a case is wrong, not because it 
has sought to maintain its Religion, but because it has made this its 
supreme end, and reduced to an inferior importance what are really 
its highest objects of pursuit. The principles upon which we 
must determine the right and the wrong of a State's action, in any 
given instance, are not those Divine laws which are to control the 
spiritual life of the individual for eternity. There are temporal 
and earthly interests for the individual ; and it is to subserve these 
that there is a State, a community, among men. These interests 
are undoubtedly secured more perfectly through the agency of 
some religion; and hence the proper and necessary connection of 
Religion with the State. But in this connection, Religion is ever 
the servant, never the sovereign. It is to be used to secure some 
end ; and may never be changed by the State so as to become, 
itself, the end to be secured. The highest question for the State 
to ask is, not what does Religion demand, but what are the demands 
of civilization and ^freedom? since these cover the individual's 
highest temporal and earthly interests. The wrong of persecution 
by the State, can be demonstrated on no other grounds. It is 
wrong because it makes religion an end, and interferes with the 
highest civilization and freedom, the only true end of the State." 

In a word, it is the political value of "religion, morality 
and knowledge," which the State proposes to secure for its varied 
purposes, and that only. And it is only on this ground that com- 
pulsory taxation for the support of common, schools, and that a 
large portion of the moneys collected for that purpose in this 
county, are distributed in other counties of the State, can be jus- 
tified. 

In looking into the authorities, it will be found that the prin- 
ciples just stated have been sustained. 

Cooley's Constitutional Limitations, 470, 471, 477, and the 
cases, cited. It ought to be stated that Mr. Cooley, in his excellent 
work, in speaking, on page 469, of "things which are not lawful 
under any of the American Constitutions," evidently had not had 
his attention called to the present, or any of the preceding Consti- 
tutions, of Ohio. Otherwise, he would not have made the unqual- 
ified declaration that " compulsory support, by taxation or other- 
wise, of religious instruction," is not lawful. 



368 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati ct al. 

Donahoe v. Richards, 38 Maine, 379, was a suit by a scholar, 
against the Superintending School Committee for expulsion from 
the town school, because she had refused to read King James' Ver- 
sion of the Bible. In the course of the opinion, Appleton, J., 
says: 

ct The Legislature establishes general rules for the guidance of 
its citizens. It does not necessarily follow that they are unconsti- 
tutional, nor that a citizen is to be legally absolved from obedience, 
because they may conflict with his conscientious views of religious 
duty or right. To allow this, would be to subordinate the State to 
the individual conscience. A law is not unconstitutional, because 
it may prohibit what a citizen may conscientiously think right, or 
require what he may conscientiously think wrong." 

A fortiori, is this true of the organic law. 
And again, on page 412, the same judge says : 

" Even Mr. Jefferson, than whom a more resolute champion 
of liberty never lived, claims no indulgence for anything that is 
detrimental ,to society, though it springs from a religious belief or 
no belief at all. His position is, that civil government is instituted 
for civil objects, and that spiritual matters are legitimate subjects of 
civil cognizance no further than they may stand in the way of 
those objects. He denies the right of society to interfere, only 
when society is a party in interest, and the consequences being 
only between the man and his Creator. But as far as the interests 
of society are involved, its right to interfere on the principle of 
self-preservation, is not disputed, and this right is resolvable into the 
most absolute necessity ; for were the laws dispensed with, when- 
ever they happen to come into collision with some supposed 
religious obligation, government would be perpetually falling short 
of the exigency. There are few things, however simple, that 
stand indifferent in the view of all sects into which the Christian 
world is divided." 

Sixth, Recurring to section 2, article 6, of the Constitution, 
already quoted, it will be apparent that the main design of the 
framers of the Constitution was to prevent any religious or other 
sect from having exclusive right to, or control of any part of the 
school fund, which we do not understand the parties to complain 
of, in the constitutional sense of the words, whatever ma be they 



Opinion of Judge Hagans. t>&9 

Minor et al. -v. Board of Education of Cincinnati et al. 

fate of this cause. It is not known that any sect or sects has had, 
in the past, or proposes in the future to have, such right or con- 
trol. The fund shall not be controlled by any sect or sects, as 
such, by any legal or legislative right, is, obviously, the sense of the 
clause. 

Seventh. It will now be quite apparent that Bloom v. Richards 
and McGatrick v. Wasson have little or no bearing on this case 
whatever. 

Eighth. We have nothing to do with the consequences of a 
reasonable and proper construction of the law as we find it. In 
the introduction of Religion in the common schools, the conscience 
of any of us must be subordinated to the public good, just as we 
surrender some other natural rights, not onb/ that the common 
good shall be subserved, but that our remaining rights shall be the 
better secured. a Salus populi suprema lex, is a maxim of universal 
application, and when liberty of conscience would interfere with 
the paramount rights of the public, it ought to be restrained." 
Donahoe v. Richards, 38 Maine, 412. One thing is certain; that 
a bad man is a dangerous man ; and that the quantum of morality 
to make a man a good citizen is small, and easily comprehended bv 
the meanest intellect is, happily for the State, true. 

Ninth. Strictly speaking, we are not called upon to determine 
what tc religion, morality and knowledge " is intended by the Consti- 
tution. It will be time enough to do that, when the School Board 
are properly called to account before a court for the religion and 
morality they may introduce in the schools, and for the manner in, 
and extent to, which they are inculcated. The history of schools 
and of the legislation respecting them, in Ohio and in other States 
and countries, would then be full of argument. The first Annual 
Report of Samuel Lewis, our first State School Superintendent, 
made to the Legislature, in 1838, is suggestive in this respect, as 
well as the uniform practice subsequently, all over the State, in 
relation to the management of common schools. 

The Resolutions positively prohibit religious instruction, and 
thus cut off the instrumentality by which those essentials to good 
government are cultivated, and that is the only question before us. 

Tenth. If we should, in any sense, worship science, or art, or 
the collective wisdom of all ages, or the souls of our ancestors and 



370 Superior Court of Cincinnati. 

Minor ct al. v. Board of Education of Cincinnati et al. 

of posterity like Compte, or intellect like Buckle, or virtue like 
Bentham, or any other divinity, and make that worship the mani- 
festation of our religious convictions, these Resolutions would pro- 
hibit instruction therein and emasculate the schools, besides doing 
violence to some consciences. 

Eleventh. There is no complaint against the High Schools, 
the pupils of which read the Holy Bible, with appropriate singing, 
and the Greek Testament, and that too, at an age when opinions 
are fast crystalizing, and when, if at all, the exclusion of religious 
teaching is a matter of the utmost moment. Nor yet are these 
complaints by those children, without parents living, or who are 
worse than orphans — homeless, helpless, and properly the wards of 
the State in regard to education — that the " reading of the Bible, 
with appropriate singing," is either irksome or illegal. 

We dismiss all other matters from special comment, brought 
to our attention, either in the pleadings or argument, because they 
either have no bearing in this view of the case, or have been dis- 
posed of heretofore. 

Our common schools can not be secularized under the Con- 
stitution of Ohio. It is a serious question whether as a matter of 
policy merely, it would not be better that they were, rather than 
offend conscience. With this, however, we have now nothing 
to do. 

But in the view of the Constitution we have taken in its appli- 
cation to this case, the resolutions passed by the School Board are 
unconstitutional and void. 



III. 

A remark or two seems necessary and proper with respect to 
other views of these Resolutions, and especially, as connected with 
their effect, other than the one in the light of which they have been 
discussed in this opinion. To all other legitimate views that may 
be said to belong to, and be involved in, the determination of this 
cause, it will be enough to say, without^ repeating what has already 
been said, that it appears, from a careful survey of the character 
and spirit of the constitutional provisions we have been examining, 
and of the legislation in pursuance thereof, that it must be true, 



Opinion of Judge Hagans. 371 

Minor et al. v. Board df Education of Cincinnati et al. 

for the purposes of the state, that Christianity, not in the sense of 
ecclesiasticism, is the prevailing Religion in the State. That is a 
fact, which seems unquestionably to be recognized in the clause 
providing both for the' protection of religious worship, and the 
encouragement of schools, as means of instruction in religion, 
morality and knowledge. The framers of the Constitution felt, 
that the moral sense must necessarily be regulated and controlled 
by the religious belief: and that whatever was opposed to relig- 
ious belief, estimated by a Christian standard, and taking into 
consideration the welfare of the State, would be, in the highest 
degree, opposed to the general public sense, and have a direct ten- 
dency to undermine the moral support of the laws, and corrupt the 
community. And in a Republic like ours, these would be fatal to 
it. There appears nothing in the opinions of our Supreme Court, 
in the cases cited, that conflicts with this idea. Some curious 
deductions flow from these principles — more curious than prac- 
tical — such as, that, if Mahommedanism, or some other form of 
barbarism, were, or should happen to become, the prevailing reli- 
gion in the State, an application of these principles would be shock- 
ing to the moral sense. This course of argument is set out in the . 
cases in 38 Maine and 2 Harrington, ubi sup., and others. 

It is not claimed, anywhere, that the Holy Bible does not im- 
press on the children of the common schools, the principles and 
duties of morality and justice, and a sacred regard to truth, love 
of country, humanity, universal benevolence, sobriety, industry, 
chastity, moderation, temperance, and all other virtues, which are 
the ornaments of human society ; and that these principles and 
duties are not in entire conformity with the demands of the Con- 
stitution and the necessities of the State. Nor is it claimed, 
seriously, that the Bible is adverse, in any translation, to any of 
these virtues, as proper to be inculcated. _ On the contrary, its 
sublime morality furnishes those teachings best fitted to develop the 
morals, and promote the virtues, that strengthen and adorn both the 
social and the public life. 

In any view that we can take of these resolutions, .in this case, 
they are unconstitutional and void. And these views are sustained 
by the authorities and references ; and they are here grouped 
top-ether for convenience : 



3 7 '2 Superior Court of Cincinnati. 

Minor et al -v. Board of Education of Cincinnati et al. 

The Ordinance of 1787 ; 3d Article of Compact. 
The Constitution of Ohio, of 1802 ; Bill of Rights, sec. 3, 
Story on the Constitution 5 sec. 1865. 
State v. Chandler, 2 Harrington, 553. 
The People v. Ruggles, 8 Johnson, 291. 
Donahoe v. Richards, 38 Maine, 412. 
Lindenmidler v. The People, 33 Barb. 548. 
Upclegraff v. Cotnmonivealth, 11 S. & R. 394. 
Co?n?nonwealth v. Kne eland, 20 Pick. 206. 
Vidal et ah. v. Girard's Ex'rs., 2 Howard, 198. 
Shaw v. The State, 5 Eng. 259. 
C. bV. y Z. Railway Go. v. The Co mm. Clinton Co., 1 Ohio 

St. 77. 
Acts to Prevent Immoral Practices, 1 S. & C. 447 ; amended, 

S. & S. 289. 
The Acts relating to Reformatory, Eelemosynary and Punitive 

Institutions. 

Finally, a thoughtful survey of our individual weakness and 
imperfections, will certainly teach us to cultivate a spirit of mutual 
forbearance and charity ; and we shall be prepared the better to 
labor for the elevation of our race, and the spread of true civili- 
zation in the earth. 

The injunction must be perpetual. 



Opinion of Judge Storer. 373 



Minor et al. v. Board of Education of Cincinnati ct a!. 



OPINION OF JUDGE STORER. 



A brief statement of the case' submitted for our decision will 
more clearly present the real question in controversy between the 
parties : 

Under the law of 1829 the common schools of Cincinnati 
were first organized, and from that time until the passage of the 
resolution by the defendants, which, it is now claimed, they had no 
legal authority to pass, the Holy Scriptures, without note or com- 
ment, have been in use in the schools, parts of which have been 
read either by the teachers or scholars as an opening exercise. In 
the year 1842, at a meeting of the Trustees, it being suggested, 
among other things, that the Catholic's children were required to 
>read the Protestant Testament and Bible, it was resolved "that no 
pupil of the common schools shall be required to read the Testa- 
ment or Bible, if its parents or guardian desire that it may be 
excused from that exercise." 

This resolution was afterward discussed by the Trustees and 
Visitors of the school then composing the Board of Education, 
in 1852, when it was again determined "That the opening exer- 
cises in every department shall commence by reading a portion of 
the Bible, by or under the direction of the teachers, and appropri- 
ate singing by the pupils, the pupils of the common schools may 
read such versions of the Scriptures as their parents or guardians 
may prefer ; provided that such preference of any version, except 
the one now in use, be communicated by the parents and guardians 
to the principal teachers, and that no notes or marginal readings be 
allowed in the schools, or comments made by the teachers on the 
text or any version that is or may be introduced." 

This was the rule, and to which no exception seems to have 
been taken, until November, 1869, when a majority of the Board 
of Education passed these resolutions. First, " that religious 



374 Superior Court of Cincinnati. 

Minor et al. -v. IJoard of Education of Cincinnati et al, 

instruction and the reading of religious books, including the Holy 
Bible, are prohibited in the common schools of Cincinnati, it being 
the true object and intent of this rule to allow the children of the 
parents of all sects and opinion in matters of faith and worship to 
enjoy alike the benefits of the common school fund." Second, 
that so much of the regulations in the course of study and text- 
books in the intermediate and district schools as reads as follows : 
" The opening exercise in every department shall commence by 
reading a portion of the Bible by or under the direction of the 
teachers, and appropriate singing by the pupils," be repealed. 

The majority of the members justify, in their answer, their 
action by setting forth " that many of the citizens who were tax- 
payers, are much divided in opinion and practice upon matters con- 
nected with religious belief and worship, and who do not believe 
the writings contained in the Bible, are entitled to be considered as 
an authoritative declaration of religious truth ; that the version now 
read is objected to by the Catholic Church as improperly trans- 
lated, and omits certain books held by that denomination to be 
canonical, and the volume itself has not its sanction ; and there 
are others who are qualified to teach in the schools, but are pre- 
cluded by their conscientious convictions as to the verity of the 
Bible. A large minority, however, state in their answer that the 
resolutions were passed against their open and persistent opposition, 
■and disclaim all connection with, or responsibility for the same. 

The action of the defendants has proceeded no further than 
the passage of these resolutions, and we are now asked to enjoin 
all further proceedings that they may adopt to give them effect. 

There has been no formal announcement to the teachers of 
the schools of the new rule, which, it will be seen, is a mere nega- 
tion of the use of the Bible, singing by the children, and all religi- 
ous teaching, without declaring affirmatively what books may be 
read, or what instruction may be given. 

We are asked to interfere between these parties, and deter- 
mine what are the rights of the one, and the powers and duties of 
the other, under the Constitution of Ohio. 

In the examination of this grave question, we may dismiss all 
reference to the history of the past, the controversies, the persecu- 



Opinio?! of Judge Storer. 21 S 

Minor et al. -v. Board of Education of Cincinnati et al. 

tions, the dogmatic assumptions of any or all the sects to which 
reference has been made in the argument. 

Nothing is gained by the assertion that the Bible is not the 
revealed will of God, or that science has so far modified or limited 
its statements, that the book itself is of doubtful authority. These 
objections are not of modern origin. There is nothing new or 
startling in the infidelity of the present day, for the same weapons 
are used now as in the past by the disciples of unbelief. We have 
been familiar with these discussions since our childhood, and while 
allowing to all the largest liberty of believing, or disbelieving, we 
claim for ourselves the same privilege, and ever have, and trust we 
ever shall, be kindly but firmly the advocate of the plenary inspi- 
ration of that volume which is our only safe guide through this 
world and gives us the happy assurance of another and better when 
our lives and labors here are ended. 

But we need not argue the point; for the old maxim, that the 
existence of the counterfeit conclusively proves there must be that 
which is genuine, is a sufficient answer to every cavil. Besides, 
the cause of truth is never advanced by satire upon the opinions or 
idiosyncracies of others, however sharp the attack or dark the pic- 
ture. 

There never can be any just denial of a fundamental truth, 
sustained only by reference to the faults or imperfections of those 
who believe and uphold it, and he who draws his conclusions of 
the verity of great truths from such a course of reasoning, will at 
last find himself in the position of one who, having examined the 
highest productions of art in statuary, should find at last that the 
only impression left on his mind was that the sculptures were 
naked. 

Separated thus from the mass of irrelevant matter in which 
the question before us has been involved by the learning and the 
industry of the counsel who have addressed us, if we regard the 
different standpoints from which they have argued, the propositions 
to be solved are simply these : Had the defendants, in the 
exercise of the discretion given them to direct the course of study 
and decide upon the text books to be used, the legal right to declare 
he Bible should no longer be read in the schools, where for nearly 
half a century it had been used as the daily exercise, and, coupled 



376 Superior Court of Cincinnati. 



Minor et al. v.~ Board of Education of Cincinnati et al. 

with its exclusion, the denial of all religious instructions and the 
reading of religious books shall be prohibited. 

If no such power existed, may we not adjudge the board has 
acted in " ultra vires^ and their resolutions are void. What, then, 
does our present Constitution prescribe. By sec. 7, art. 1, it is 
ordained that " Religion, morality and knowledge being essential 
to good government, it shall be the duty of the General Assembly 
to pass suitable laws to protect all religious denominations in the 
peaceable enjoyment of their own mode of public worship, and to 
encourage schools and the means of instruction." The section 
commences with the assertion that " all men have a natural and 
indefeasible right to worship Almighty God according to the dic- 
tates of their own conscience. No persons shall be compelled to, 
erect or support any place of worship, or maintain any form of 
worship, and no preference shall be given by law to any religious 
society, nor shall any interference with the rights of conscience be 
permitted." This may be said to be a literal transcript of sec. 3, 
art. 8, of the Constitution of 1802, and that in substance is bor- 
rowed from art. 3 of the Ordinance of 1787. These are the 
affirmations of a great truth, and to vindicate which we believe they 
were inserted in our organic law. 

They recognize the existence of a Supieme Being, and the 
fact is judicially admitted that religion, as well as morality and 
knowledge, are essential to good government, and consequently, 
make it imperative that schools and the means of education shall be 
regulated by the Legislature. 

Now it will be admitted that no preference can be given to 
religious sects, as such, as difference of opinion upon religious sub- 
jects is not only tolerated, but the right to enjoy it is given to its 
fullest extent. There is a manifest distinction, however, between 
religion and religious denominations, as they present all shades of 
theoretic as well as practical belief. Hence it is we may recur to 
the clause so prominently presented in the section of our Bill of 
Rights that secures to all the worship of Almighty God, as the 
exponent of what we may rationally conclude the founders of the 
Constitution intended by the general term religion. This, more- 
over, is the definition of the word as we find it explained by the 
best lexicographers — Johnson and Richardson. Webster and 



Opinion of Judge Storev. 377 



Minor et al. -v. Board of Education of Cincinnati eta/. 

Worcester — and one may well conclude it can not be extended to 
those who know no other Divinity than that which was inscribed 
centuries ago upon the altar in Athens — " The Unknown God." 
If, then, the recognition of the Supreme Being is the true meaning 
to be applied in this connection let us inquire if the Legislation of 
our State, in very many instances, does not fully sustain the idea. 

We find in the class of exemptions of personal property from 
execution, the family Bible is especially named, and this, too, before 
the homestead and the present privilege of the debtor were secured 
by law. So, in the Apprentice law, one of the conditions in the 
indenture binding on the master is that he shall give to the appren- 
tice, at the close of his term, a new Bible ; and in the statute regu- 
lating county jails, each prisoner is to be supplied with a copy of 
the Bible, (i S. & C. 746.) By the 19th section of the Peniten- 
tiary law. (1 S. & C. 918), it is made the duty of the Warden to 
furnish each criminal with a Bible — who shall permit, as often as 
he may think proper, regular ministers of the Gospel to preach to 
such convicts, and we are assured the same rule is adopted in the 
government of all of our benevolent institutions, including the 
House of Refuge and Reform School. Now, ib must be recol- 
lected that all these institutions are sustained at the public expense, 
the property of every person in the State being taxed to furnish the 
necessary means. And yet, while the Scriptures are made indis- 
pensable for every penal, reformatory and benevolent institution, it 
is claimed they can not be introduced into the common schools 
of Cincinnati, and if found there, either used or read, shall there- 
after be prohibited. 

Nay, more, while that volume is found in every court of jus- 
tice, and the two houses of the General Assembly, upon which 
we, the Judges of this Court, have been sworn to administer jus- 
tice and uphold the Constitution and laws, it is expelled from our 
common schools, thus making it the only exception to its recogni- 
tion as an exponent of religion and morality. There is, then, no 
express prohibition of the Bible, by law, as a book to be read or 
used in the education of our youth, nor do we think that it can be 
implied from the letter or the spirit of our organic law. 

We have said that religion necessarily depends on the belief 
in the existence of a God — not the offspring of the imagina- 



37^ Superior Court of Cincinnati. 

Minor et al -v. Board of Education of Cincinnati et al. 

tion only or dependent for its authority upon what has been called 
certain fixed laws, nor yet limited to the narrow domain of reason, 
but an -infinite power above us and over us, dealing with men as 
moral agents, imposing upon them His sanctions, while demand- 
ing obedience and accountability to His laws. This is the lowest 
view we can take of the Supreme Being. Still it is taught only 
by revelation, ^not of the rocks or the pride of the intellect, or the 
argument of the watch we find in Paley's Natural Theology, but 
by the answer of our own consciousness, that there is a divinity 
that stirs within us, which can not be satisfied with only cold de-' 
monstration, but adopts the beautiful sentiment: "Where reason 
fails there faith adorns." If we are challenged to prove what can 
not be demonstrated as an objective fact, we may well conclude 
with Bishop Berkley, " that the objections made to faith are by no 
means an effect of knowledge, but proceed rather from an ignor- 
ance of what knowledge is j" or the profound remark of Sir 
William Hamilton, that " no difficulty emerges in theology that 
had not previously emerged in philosophy." 

Reason gains nothing by repudiating revelation, for the' mys- 
tery of revelation is the mystery of reason also, is the profound 
observation of Henry Mansell, inhis~great work on the Limits of 
Religious Thought. 

A religion of the intellect, disconnected with the supernatural, 
that has no other sanction than what is claimed to be reason, can 
not have been intended by those who framed our several Constitu- 
tions, or enacted the many statutes directly or remotely referring 
to the clause in the Bill of Rights, and we are pressed with the 
conviction that it was their purpose to authorize no other definition 
of the term "religion" than that which was understood to be the 
worship of Almighty God, who alone has endowed man with a 
conscience. 

A further examination of the statute on the subject of grants 
for religious purposes and for the support of the Gospel — the title as 
given by the late Judge Swan, in his carefully compiled volume of 
the Laws of Ohio, published in 1825 — we find that the whole 
space between pages 134 and 246 is devoted to the various enact- 
ments on the subject which we have referred to. These pages 
include the incorporation of colleges and academies, and expressly 



Opinion of Judge Stofer. 379 

Minor et al. <v. Board of Education of Cincinnati et al. 

refer to -the education of youth as important to morality, virtue, 
and religion ; directing-, also, How the income derived from section 
29, in the Ohio Company's purchase, and the grant to John Cleves 
Symmes, set apart for religious purposes, should be appropriated and 
divided among the different denominations. And the law to incor- 
porate the original surveyed townships, now in force (1 S. and C. 
1580, sec. 13), provides that each and every denomination or religi- 
ous society shall receive a dividend of the rents from the minis- 
terial sections, according to their numbers, to be appropriated for 
the support of religion, at the discretion of the society. But the 
society must be formed and sustained for a religious purpose, as the 
language would seem plainly to import. Our Supreme Court, 
moreover, has given a judicial construction to the term in 7 O. S. 
64, The State v. The Trustees of Township 9 : 

" The society thus formed must be religious, and not for 
mere secular purposes ; for the statute describes the society entitled 
to the fund as a religious society. Religious societies of sects and 
denominations are founded for the purpose of uniting together in 
public religious worship, and religious services, according to the 
customary, habitual, or systematic forms of the particular sect or 
denomination, and in accordance with and to promote and enforce 
their common faith and belief." 

From what we have already said, we are led to the -conclusion 
that revealed religion, as it is made known in the Holy Scriptures, 
is that alone that is recognized by our Constitution, and has, by a 
long series of legislative enactments, been sustained by the Gen- 
eral Assembly. On no other ground could blasphemy be made 
criminal, not merely against the Supreme Being, but extended as it 
is to the Son and the Holy Ghost, names to be found only in the 
Bible. Indeed, we are impressed with the belief that the Legisla- 
ture merely expressed the great public sentiment, else the law 
against such profanity would long since have been repealed. 

But it is said by one of the counsel who has so ably argued. 
for the defendants, " that when the Constitution says religion and 
morality and knowledge are essential to good government, it simply 
means that the intuitive sense of right and wrong shall be brought 
out by exercise and developed ; the only religion that it considers 
vital to the preservation of the State is that which is written upon 



380 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

human nature." This is a bold proposition, and one that is, it 
seems to us, most difficult to sustain upon any other ground than 
that which would justify the devotee to be crushed beneath the 
car of Juggernaut, the Hindoostan widow to cast herself upon the 
funeral pile of her husband, or the revolting cannibalism that once 
prevailed in the islands of the South Sea. Nay, further, on this 
hypothesis we may vindicate the orgies of the heathen temples in 
the most enlightened ages of the past, when the Roman could 
utter the exclamation, li O, dii, immortales" and yet sacrifice to 
Venus, to Bacchus, and to Mars. 

To our apprehension it does not appear probable that our law- 
makers would have sanctioned such a rule, if it had ever been 
proposed, and their silence as to such a suggestion is rationally con- 
clusive that they never could have seriously entertained it. With- 
out the teachings of the Holy Scriptures there is, we believe, no 
unvarying standard of moral duty, no code of ethics which incul- 
cates willing obedience to law, and establishes human governments 
upon the broad foundation of the will of God. Hence, it was the 
great purpose of the clause in the Bill of Rights, to which we 
have already referred, to announce the deep conviction — we might 
say, the authoritative opinion — that religion was necessary to good 
government, not the shadowy view of man's duty which lets in 
upon the vision a faint ray of light to make the surrounding dark- 
ness more visible, but the recognition of an almighty power, 
demonstrable, it is true, by what meets our vision, but alone sub- 
jectively taught by his revealed will. 

Yet, it is said the natural conscience is to be taught, the 
instinctive sense of right and wrong is to be brought out by exer- 
cise and developed ; but we are not told what is to be the exercise, 
or how the development is to be effected. What is to be the 
process by which the minds of the young are to be cast into the 
crucible and refined from any innate or acquired impurity? What 
high and holy motive is to be addressed to the pupil, when his 
origin, the purpose of his probation on earth, and all knowledge of 
a hereafter, are not only to be withheld, but the volume which dis- 
closes them is ostracised as one not only unfit to be read, but as 
conflicting with the conscience that has never yet, perhaps, been 
enlightened by its truth ? 



Opinion of Judge Storer. 381 

Minor er al. v. Board of Education of Cincinnati et al. 

It can not be claimed that good government can exist where 
there is no religion which embodies the idea of obedience to God ; 
but on the contrary, the will of every man may be the true arbiter 
of his conduct and the measure of his responsibility ; for if such a 
dogma should be allowed, all restraint upon human passion, every 
check upon the oppression of the few by the despotism of the many 
would cease, every individual being a law unto himself, defending 
his conduct by the assumption that he conscientiously believed he 
had the right to do so. In such a war of conflicting elements the 
strife of opinion would be uncontrolled, and the moral power of 
our republic be made to depend upon individual caprice, precipita- 
ting, at no distant day, the now freest and happiest government on 
earth into remediless ruin. We will not anticipate such a catas- 
trophe ; but if the shipwreck shall ever occur, it will a be fatal one. 

The whole argument that seems to us reaches the real ques- 
tion before us is predicated upon the supposition that the Bible is a 
volume whose teachings lead to sectarianism, and which ought no,t, 
therefore, to remain in the schools. 

We do not admit the assertion, either in whole or -in part. 
What we. understand by sectarianism is the work of man, not of 
the Almighty. We are taught in the Scriptures that we are all 
the children of a common Parent, who is our Father and our 
Friend, that we are all of the same blood, a common unity pervad- 
ing the race. Such, however, is. not the human lesson. Learned 
"men are not satisfied with the plain statement of revelation. They 
have divided the human family into distinct parts, giving to each a 
separate origin. We learn from the Bible to forgive injuries, to 
deal justly, to elevate our conceptions above the objects that sur- 
round us, and feel we were born to be immortal. - Not so are we 
thoroughly taught by the profoundest system of human philosophy. 

A volume that unfolds the origin of men, the beginning of 
time, and the assurance of an eternity when the present dispensation 
shall end, can not, upon any rational principle, be said to indicate 
religious exclusiveness. It has, we admit, seen its dark days, and 
has contended with bitter foes, yet it has suffered as much, if it 
could suffer at all, from the mistaken zeal, or the dogmatism and 
intolerance, of its professed friends. If the Hebrew, the Samaritan 
or the Septuagint version of the Old Testament had not been bur- 



382 Superior Court of Cincinnati. 

Minor et al. *v. Board or Education of Cincinnati et al. 

dened by the glosses and the traditions of men, and the book of 
the law been left untouched as it came from the hand of Moses, 
or as it was found in the Temple by Hilkiah, it would now be a 
clear, yet simple and conclusive record of the Divine will. And 
so of the decrees of councils as to what is or what is not to be 
believed, and the numerous commentaries that have been written 
in modern times upon every book and every verse of the New 
Testament, which have, many of them, obscured the meaning of 
the record, diluted its truths, or vindicated some favored theory — 
if all these had been omitted, we should find that " Scripture is 
given by inspiration of God, and is sufficient for doctrine, for 
reproof, for correction and instruction in righteousness." 

We marvel not that the mixtures and devices of men have 
obscured revelation when scarcely a week passes by without the 
annunciation of some new annotation or analysis, or the defence of 
some peculiar dogma. 

All these, we admit, tend to the same result, which is neces- 
sarily a devotion to a sect. But we can not admit that the Bible 
necessarily induces any such consequences. 

If it is candidly examined, studied without preconceived 
prejudice, its truths admitted to the test of enlightened conscience, 
we doubt not the answer always will be as it ever has been, the 
acknowledgement of its sacred character, and a veneration for its 
truthfulness. 

It is urged, however, that the conscience of the Catholic 
parent can not permit the ordinary version to be read as an exercise, 
as no religious teaching is permitted by this church, unless it is 
.directed by the clergy or authorized by the church itself, and it is, 
therefore, offensive to the moral sense of those who are compelled 
to listen when any portion of the Bible is read ; but the rule has 
long since been abolished requiring children to be present, or to 
read from the version now in use, if it should be the expressed wish 
of the parents first communicated to the teachers. 

The reason of the objection, then, would seem to have ceased. 
More than this, it is in evidence before us that our Catholic friends 
have their own separate schools, -and very few of their children 
attend the common schools, while in one of these schools the 
Douay translation of the Bible is read as a daily exercise. 



Opinion of Judge Storer. 383 

Minor et al. -v. Board of Education of Cincinnati et al. 

The Catholic does not deny the inspiration of the Scripture, 
but does not admit the accuracy of what is called King James' 
version. Yet, with comparatively few exceptions, the omission 
of the Apocryphal Books, and the rendering of some peculiar 
passages, we do not suppose there is any very essential difference 
between the versions. Jerome was an accurate scholar, and has 
faithfully translated the Old Testament from the Septuagint, and 
the Gospels and the Epistles from the Greek, and we would freely 
say that no reasonable objection can be urged against the introduc- 
tion into the schools of WycklirFe's translation of the Vulgate, if 
its language was modernized, especially as it was the first attempt 
to render the Scriptures into English. As to the omitted Books, it 
is said that St. Jerome first called them Apocryphal, with the 
remark: " Canonici sunt ad formandos mores non ad conformandos 
fidem" 

But is it consistent with this claim of counsel that, even if 
the Bible should be prohibited, Catholic children would not attend 
the common schools, unless subject to the teachings of their spir- 
itual guides ? The schools have been denominated godless, while 
the Scriptures are yet read as a daily exercise. What must they 
become, and what will they be termed, when the Scriptures are 
forbidden ? 

What appears to us to underlie this view of the case, is the 
alleged injustice that Catholic parents, in common with other prop- 
erty-holders, should be taxed for the support of schools that are 
independent of the control of the Church, and consequently, 
opposed to its whole economy. 

This has been pressed in argument, though no one of the 
counsel for the plaintiffs or defendants have intimated there should 
be a division of the school fund. With the justice or injustice, 
therefore, of the mode of taxation, we have nothing to do in decid- 
ing the questions submitted to us. If the point should ever arise, 
we trust we shall attentively consider all the objections that may 
be raised to the present organization of the schools; but it fur- 
nishes no ground of argument against the reading of the Bible that 
the taxes for the support of the schools are not equally assessed or 
properly distributed. We can not believe that any portion of the 
community, either from prejudice or the belief of wrong done, 



384 Superior Court of Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

when the judicial tribunals are open, and their complaints may be 
heard, would imitate the strong man of old by laying their hands 
upon the pillars which support the temple, when the inevitable 
result would be a common ruin. 

Nor do we perceive how the reading of the Old Testament 
can offend the conscience of a pious Israelite. That people have 
preserved intact the sacred record which so graphically and truth- 
fully describes their origin, their dispersion, their wilderness jour- 
neyings, their persecutions, the proscription of their race for 
centuries, until they have found freedom in its truest sense in this 
Western world. They are no longer restricted in their industrial 
efforts, and are daily learning that the genius of our institutions 
proclaims the glorious equality of all men before the lav/. Their 
prophets have foretold, and their bards have sung what they now 
witness in fulfillment. Their children have been, and still are 
educated in the public schools, and in the higher departments of 
learning are exhibiting the ability and independence which their 
forefathers illustrated before their temple was destroyed, and Jeru- 
salem was yet the joy of the whole earth. 

Under the same resolutions that the conscience of the Cath- 
olic is protected, that of the Israelite is equally shielded from 
injury. When Voltaire, in his Philosophical Dictionary, vilified 
the Old Testament history, denied its authority, scorned its pure 
morals, claiming that the relations of the deluge, the exodus from 
Egypt, the passage of the Red Sea and the Jordan, were mythical, 
he was confronted boldly and sorely defeated by the noble argu- 
ments, the profound learning of the Portuguese Jews, then residing 
in Amsterdam. This work, of which we have an English trans- 
lation, is well worthy the study of minister and layman. 

It is urged for the defense that there is a class who cling to 
no particular sect, who do not regard the Scriptures as inspired, but, 
on the contrary, hold them to be human productions, and therefore 
their consciences are not consulted. If this is true, it is not per- 
ceived how disbelief is any objection to the reading of a book 
which may enlighten, if not improve, the moral faculties. The 
mere denial of a fact does not disprove it, and if we can not 
apprehend a truth, it is no ground to refuse the perusal of a volume 
that may remove doubt ; at least none need be anticipated when 



Opinion of Judge Storer. 385 

Minor et al. v. Board of Education of Cincinnati ct al. 

the reader's faith and philosophy are also dependent on the fitness 
of things controlled, as he claims them to be, by fixed laws. 

We therefore conclude upon this branch of the case, that the 
premises upon which the whole argument of the defendants depends 
as to the rights of conscience being violated, have been assumed, 
and not proved to exist. On the other hand, we may well suppose 
the consciences of the many thousands who protest against the 
resolutions of the Board of Education, if any wrong may have been 
done, have equal cause to complain. 

Nor do we think that the mere reading of the Scriptures with- 
out note or comment, and in detached sentences, can be deemed 
an act of worship, in its commonly received definition. The les- 
sons selected are, in all probability, those which elevate the mind 
and soften the heart — an exercise not only proper, but desirable to 
calm the temper of children, while it impresses the truth of per- 
sonal responsibility for good or evil conduct. It furnishes a perfect 
standard of moral rectitude not to be found elsewhere, which is. 
immutable as it is authoritative. • No prayer is required of the 
teacher or the scholar, though the simple and beautiful pater nostev 
would not, we believe, be out of place. 

If, then, " no religious test," to use the language of the Bill! 
of Rights, is required of teacher or scholar, if no act of worship, in 
a sectarian sense, is performed, if no sectarian or denominational 
teaching is introduced, and even the possibility of either is pre- 
vented by the resolution long since promulgated, that those who 
desire it may be exempted from the general rule, we can not 
see how the defendants can justify the exclusion from the schools, 
of what has been permitted there for nearly half a century without 
rebuke. It can not be that a new revelation has been received by 
the Board of Education of what is their responsibility to the public, 
or that they, as a body, have become wiser, better informed, or 
have a clearer perception of moral duty than their predecessors, for 
these suppositions were not made, much less suggested, and we are 
consequently led to believe that there has been hasty, unnecessary 
and unauthorized legislation, neither demanded by the state of fact 
upon which that legislation is said to be based, nor yet the wish of 
those whose sons and daughters have heretofore been or are now 
being educated in the public schools. 



3 8 6 Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et al. 

Leaving these questions of secular teaching, and what is 
claimed to be worship, may it not be admitted that the Bible may 
properly be read for its moral teaching, its history, its geographical 
descriptions, its pure Saxon English, so simple that every ordinary 
capacity may be instructed, and the most exalted intellect find 
material for profound thought. 

Where else do we find an intimation even of the origin of 
our world and of man, briefly stated, without explaining the mighty 
forces employed in the work of creation ? When Longinus 
exclaimed that the true idea of the sublime was contained in the 
expression, " God said let there be light, and there was light," he 
gave but the echo of the same thought which has impressed the 
philosopher for ages. Such a gem would have established in his 
estimation the veracity of the volume, had it been questioned. 

There has not been, we may assert, and never can be, a system 
of ethics that it not directly or remotely dependent on the lessons 
taught in the Scriptures, and to this source we may trace all that is 
" pure and lovely and of good report " among men. This, then, 
is not a dangerous volume to place in the hands of the young. 
Historically, it is the oldest record of past time. Centuries before 
Herodotus, the father of history, wrote his annals, all the books of 
the Old Testament, except that of Malachi, had been written, and 
were known and read wherever the Israelites were dispersed. We 
find here the earliest mention of Assyria, Babylonia and Egypt. 
The record of time is contemporaneous with the oldest dynasties, 
verified as they are by the cuneiform inscriptions found among the 
ruins upon the Tigris and Euphrates, and the hieroglyphs in the 
sarcophagi disinterred from the catacombs on the Nile. Palestine, 
with all her old associations, is revived, when the traveler uses the 
sacred volume as his text-book. It is a veritable itinerary, and 
alone has enabled the scholar to determine the places memorable 
for the demonstration of Jehovah's power, as when the sun stood 
still at Ajalon, or the shadow went back on the dial of Ahaz. 
Bethlehem, and Hebron, and Damascus, the whole valley of the 
Jordan, are here described accurately, and without which their for-' 
mer history would be imperfectly known. 

Can it then be said that what the prophets of the Old Testa- 
ment foretold of Nineveh and Babylon, when the excavations of 



Opinion of Judge Storer. 387 



Minor et al-v. Board of Education of Cincinnati ct al. 

Leyard and Botta, and the researches of Rawlinson have confirmed 
the prediction, may not be perused by the children as a part of their 
education in the history and geography of the world? When Vol- 
ney's travels in Syria, which describe the destruction of Tyre and 
Sidon, are not prohibited by the Board of Education, is it just to 
exclude what the Sacred Volume asserted would be their fate a 
thousand years before their destruction ? There is to be no cen- 
sorship over the Latin and Greek classics, or German and French 
literature, however exceptionable may be the production ; the cru- 
sade is against the Bible only, the first printed volume after types 
were invented, and which, since 1450, has been regarded by mil- 
lions as the word of God — a book which, from its first publication 
in Latin, has been translated, and is now circulated in more than 
two hundred languages ; a volume recognized by every civilized 
government as sacred, and has ever retained, and, we trust, will 
ever retain, as contradistinguished from all other books, the name 
it bears" — The Bible. 

As a work of history or geography, therefore, it bears the 
highest evidence of its accuracy, and commends itself to every 
intelligent mind as a faithful record of facts. Its prohibition, then, 
may, for like reasons as those given by counsel, include the works 
of Josephus, Pope's Essay on Man, Milton's Paradise Lost, Hal- 
lam's Middle Ages, Prescott's Phillip II., and Motley s History of 
the Netherlands, for each of these offend some conscience on the 
ground that private judgment is interfered with. 

The resolution which dismisses the Bible forbids all religious 
instruction, as well as vocal music. It is a sweeping edict that 
comprehends not only the Holy Scriptures, but all other religious 
instruction, leaving the schools practically " without hope and 
without God ;" not even natural religion is to be taught, the 
existence of a Deity, or the responsibility of man to his Creator. 
All is left a blank, if the inquiring pupil should interrogate the 
teacher as to his origin, he may be referred to the geologists, but 
not to Genesis. If he should be asked why it is that the Sabbath 
day is to be observed, he may be postponed until the teacher ob- 
tains the consent of the Board of Education to answer the question, 
thus leaving the scholar in doubt as to the meaning of what is 
constantly passing before his eye. 



388 Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et al. 

If, peradventure, at home, the pupil should have read .of the 
Deluge, the instructor, if asked when and where it occurred, he 
may, if he is a mere humanitarian, assure the inquirer that the 
statement is a myth and not a verity. Such a state of moral dis- 
cipline could not have been anticipated when the common schools 
were organized and the course of study prescribed, else we believe 
no pupil would have been taught, and no building been erected for 
his accommodation. 

In this connection we can not well understand why the axe 
was not laid at the root, and the high schools which are equally sup- 
ported by taxation, included within the terms of the excluding reso- 
lution. It is true that the Board could not, ex officio, have regulated 
the Trustees of those schools, but they might have intimated to 
them what they believed to be the true purpose of education. As 
it is, though the children in the preparatory department are forbid- 
den to do what we believe they ought to do, whenever they enter 
the high schools, which it is their privilege to enter when properly 
prepared, they may read the Scriptures and receive such religious 
instruction as the spirit of the Constitution secures to them as indi- 
viduals, and may well demand they should know that religion, 
moralitv, and knowledge are necessary to good government, with- 
out which there is no security for the public safety, or the protec- 
tion of individual right. 

Much stress is laid upon the idea that the former rule pre- 
scribing the reading of the Scriptures was compulsory upon 'the 
scholars, and so were all regulations in the course of instruction ; 
but compulsory clauses do not make the rule illegal if right in itself. 
That it was right and proper we have already affirmed, and we need 
not again state the fact. 

We have been referred to the opinions of many celebrated 
men, on theoretical questions, where public education is involved ; 
and, while we have been instructed by their abstract notions, we 
can not defer to their judgment, unless we are satisfied they have 
investigated the subject from an American standpoint, where the 
largest liberty is to be tolerated, and unless the great principles that 
underlie our peculiar form of government are not endangered by 
the admixtures of a philosophy that would ignore religion. 

In the progress of science the minds of many have become 



Opinion of Judge St over. 389 

Minor et at. -v. Board of Education of Cincinnati etal. 

greatly materialized, when questions of faith are involved, and it be- 
comes us to be careful what we admit or affirm, as the result of 
dogmatic teachings, either in religion or morals. Until our trans- 
Atlantic brothers have become practically acquainted with the 
workings of our political system, their views of our social system, 
however learned, are entitled to but little weight. 

On the whole case we are satisfied that we have complete 
jurisdiction of the subject before us, and of the parties; that 
the matters alleged by the plaintiffs and admitted by the defendants 
present just and equitable grounds for our interference. We so 
decide, because we are satisfied that the powers conferred on the 
defendants have been transcended ; that the resolutions prohibiting 
the Bible and all religious instruction are ultra vires^ and therefore 
void. 

:,,,_, We have not referred to any adjudicated case, as those quoted 
by one of our colleagues fully justify us. We stand upon the ad- 
mitted principles, as true in law as in equity, that the unauthorized 
acts of a corporate body or trustees, whose powers are prescribed 
by law, may be restrained. While we hold that every form of 
religious worship is to be alike protected by law, and the conscience 
of every man can not be questioned ; while the broad shield of the 
Constitution is over all our citizens, without distinction of race or 
sect, we can not ignore the right of the petitioners to the relief 
they have sought, nor can we, with our views of legal duty, sus- 
tain the action of the defendants. 

A majority of the Court are of this opinion, and a perpetual 
injunction will be therefore decreed, as prayed for in the petition. 



39° Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et al. 



OPINION OF JUDGE TAFT. 

I. 

I regret to find myself in a minority on this question. Nothing 
but a sense of duty has induced me to prepare a dissenting opinion. 

The action in this case is brought to enjoin the Board of 
Education of the City of Cincinnati, from acting under the two 
following resolutions, which were adopted Nov. i, 1869, viz. : 

" Resolved, That religious instruction and the reading of 
religious books, including the Holy Bible, are prohibited in the 
common schools of Cincinnati, it being the true object and interest 
of this rule, to allow the children of the parents of all sects and 
opinions, in matters of faith and worship, to enjoy alike the benefit 
of the common school fund." 

" Resolved, That so much of the regulations on the course of 
study and text-books in intermediate and district schools (p. 213, 
Annual Reports), as reads as follows : ' The opening exercises in 
every department shall commence by reading a portion of the Bible 
by, or under, the direction of the teachers, and appropriate singing 
by the pupils/ be repealed." 

The injunction is sought against both resolutions, but on 
grounds which apply mainly, if not exclusively, to the first. 

I propose to consider them separately, and in the order in 
which they were adopted. The object of this resolution is suffi- 
ciently indicated by its language, " it being the true object and 
intent of this rule, to allow the children of parents of all sects and 
opinions in matters of faith and worship, to enjoy alike the benefit 
of the common school fund." 

I see no reason to suppose, the Board of Education intended 
anything more or less, than it has thus expressed. Its opinion evi- 
dently was, as the majority have said by their answer, that in the 
great diversity of religious faiths which exists among us, true con- 
formity to the spirit and language of our Constitution could be best 
secured, by confining the instruction in the common schools which 



Opinion of Judge Taft. 391 

Minor tt al. -v. Board of Education of Cincinnati ct al. 

are supported by general taxation, to secular knowledge and moral 
and intellectual culture, leaving what is commonly understood by 
religious and doctrinal teachings, to other and more appropriate 
instrumentalities. By the words "religious instruction" as used in 
this rule, I understand special or formal religious teaching, such as 
would be in conformity to the views of some one, or more, of the 
numerous religious sects, and by consequence, would be offen- 
sive to some one, or more, of the other religious sects. The 
Board would probably have used the word sectarian, in connection 
with, or instead of "religious" instruction, but for the dispute that 
would have arisen, as to what was sectarian, each sect being likely 
to suppose its own views free from that objection. But, that its 
purpose might not be misunderstood, the explanatory clause isadded, 
that the true object and intent of the rule was, " to allow the chil- 
dren of parents of all sects and opinions in matters of faith and 
worship, to enjoy alike the benefit of the common school fund." 
Whether this policy may or may not require any changes in the 
school books now used, beyond the omission of the reading from 
King James' version of the Bible, and the singing of hymns, can 
not now be determined, and if it could, would not in my judgment 
be material in the decision of the present case. But this first res- 
olution does undoubtedly pledge the Board of Education as at pres- 
ent constituted, to all parents, that no religious doctrines shall be 
taught in the common schools, and no form of religious worship 
used, so far as it is practicable to avoid it, which is offensive to the 
religious convictions of any. 

A fair construction, however, of this resolution does not 
require the exclusion of extracts from the Bible, or from other 
religious books, incorporated into the text-books of the schools for 
the purposes of instruction and practice in reading, and speaking, 
and composition, or for the purpose of scientific instruction. These 
books contain also numerous extracts from ancient classic authors. 
But we do not regard that as constituting these school readers and 
speakers, Pagan books, or the reading of them in the schools, as 
Pagan instruction. The passages so incorporated in the school 
books as lessons in reading and speaking, are not placed there, to 
give them authority as religious doctrines. A very considerable 
portion of the time of students in the high schools, and in col- 



2gi Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et al. 

leges, is spent in translating Hesiod, Homer, Virgil, and other 
ancient authors, whose writings formed what might be denominated 
the Pagan Bible, and contained the popular mythological religion 
of their times. But it does not follow, that these students are in 
danger of becoming proselytes to Paganism. 

It is obvious to my mind, that the Board intended to carry out 
the constitutional ideas contained in the seventh section of the Bill 
of Rights, " That all men have a natural and indefeasible right to 
worship Almighty God according to the dictates of their own con- 
science," "That no person shall be compelled to attend, erect, or 
support any place of worship, or maintain any form of worship, 
against his consent ;" " That no preference shall be given by law 
to any religious society ;" " That no interference with the rights of 
conscience shall be permitted ;" and the kindred constitutional idea 
of the common schools, contained in the second section of the sixth 
article of the Constitution of Ohio, " That the General Assembly 
shall make such provision, by taxation or otherwise, as, with the 
income arising from the school trust fund, will secure a thorough 
and efficient system of common schools throughout the State : but 
no religious or other sect or sects shall ever have any exclusive 
right to, or control of, any part of the school funds of this State." 

The Board has gone upon the theory, that to allow any sect 
or sects so to control the religious instruction or worship in the 
common schools as to exclude, or tend to exclude, any portion of 
the community from the enjoyment of them, would be, to the same 
extent, permitting such sect or sects " to have exclusive control of 
the school funds." And that the necessary secular education of all 
the children of suitable age, if they can be induced to attend the 
common schools, will afford ample opportunity to spend all the 
funds provided, or likely hereafter to be provided, for common 
school purposes ; while the religious sects are left to support the 
teaching of religious tenets to their children, as they support public 
worship, on the voluntary principle. 

Such, in general, is the logic of this proceeding. It evinces 
no hostility on the part of the Board of Education to the Bible, to 
religion, or religious teaching, but rather a neutrality toward all the 
sects, which could not be otherwise maintained, and which had 
become essential to religious peace. This proceeding is a natural 



Opinion of Judge Taft. 393 

Minor et al. -v. Board of Education of Cincinnati et al. 

result of the elements of our population. While these elements 
were quiet or acquiescing, no such proceeding was necessary, and 
it was natural that many should be surprised that the Board should 
regard this step as necessary now. 

I see no evidence of any official oppression or abuse on the 
part of the Board, or of recklessness of duty, or of disregard of 
individual rights, or of sacred things, to justify the Court to inter- 
fere with its action, if it has acted within its legal power. It 
remains to decide whether the Board, in passing this first resolution, 
exceeded its lawful power. 

The claim of the counsel for the plaintiff is, that the prohibi- 
tion of religious instruction and of the reading of religious books, 
including the Holy Bible, in the common schools of Cincinnati, is 
in direct conflict with the last clause of the seventh section of the 
Bill of Rights, which provides, " That religion, morality and knowl- 
edge, however, being essential to good government, it shall be the 
duty of the General Assembly to pass suitable laws, to protect every 
religious denomination in the peaceable enjoyment of its own mode 
of worship, and to encourage schools and the means of instruction." 

It is not claimed that the General Assembly has passed any 
law requiring religious teaching in the common schools. The 
absence of such a statute is an important feature, which can not be 
overlooked in deciding this case. But, I will first endeavor to 
ascertain what the framers of the Constitution intended to secure 
by this clause of the Bill of Rights, and afterward we may consider 
the means, by which it was to be done. 

I will here remark at the outset, that I find no conflict between 
this clause and the preceding part of the section, which protects 
religious liberty and the rights of conscience. 

It does not say what kind of " schools " are to be " encour- 
aged," nor what " means of instruction." It does not designate 
"common schools," as "the schools," or "the means of instruc- 
tion." And it is pertinent here to remark, that the provision in 
the old Constitution from which this section is derived, was adopted 
long before the common school system came into existence ; and 
that it was the sixth article of our present Constitution of 1852, 
which first required the General Assembly, "by taxation or other- 
wise," "to secure a thorough and efficient system of common 



394 Superior Court of Cincinnati. 

Minor et al. <v. Board of Education of Cincinnati et ah 

schools throughout the State ;" and so far was it from associating 
the idea of religious teaching with this "efficient system of com- 
mon schools," that it expressly provided " that no religious, or other 
sect or sects, shall ever have any exclusive right to, or control of, 
any part of the school fund." 

There are other schools, which, under this clause in the Con- 
stitution, are entitled to encouragement by suitable laws from the 
General Assembly. Academies, seminaries for young ladies, high 
schools, colleges, universities, medical schools, law schools, theo- 
logical schools, all of which and many more, are encouraged by 
suitable laws, under which they are incorporated, and hold prop- 
erty free from taxation. Nor are the schools the only "means 
of instruction," contemplated by the Constitution, all of which are 
embraced in this general provision. 

If the framers of the Constitution had intended the' "common 
schools" only, they would not have used such unlimited and gene- 
ral terms without referring in any manner to the system of com- 
mon schools, which was provided for in the sixth article of the 
same Constitution, where the General Assembly was required, not 
merely to encourage by suitable laws, but " by taxation to secure 
a thorough system of common schools throughout the State." 
What occasion was there to require the General Assembly, by 
suitable laws to encourage common schools, when it had already 
been required " to secure an efficient system " of them, through- 
out the State ? Nothing can be clearer, than that, if they had 
intended common schools only, they would have used the term 
" common schools," as the system of common schools was pro- 
vided for in the same Constitution. This encouragement, there- 
fore, provided for, is general and directory, enjoining upon the Leg- 
islature, a liberal policy toward all schools, and all means of useful 
instruction. 

Is it necessary then, under this clause, that all kinds of schools 
in Ohio shall have religious instruction, and that every means of 
instruction shall be religious ? Does this general provision requir- 
ing that the General Assembly shall " pass suitable laws, to protect 
every religious denomination in the peaceable enjoyment of its own 
mode of worship, and to encourage schools and the means of 
instruction," imply religious " schools," and religious " means of 



Opinion of Judge Taft. 295 



Minor ct al. v. Board of Education of Cincinnati ct a/. 

instruction ?" If the Convention had so intended, it would have 
been natural, and very easy to have so said, and the entire absence 
of any expression of that purpose, affords a strong presumption 
that no such intention existed ; and a singular intention it would 
be, to provide that laws should be passed, requiring all schools, and 
all the means of instruction to be religious, in the sense claimed by 
the plaintiffs in this case. But no such purpose appears to have 
been expressed, or intended. 

The religion of the Bill of Rights, is not sectarian religion. I 
understand by that term, as there used, reverence and love toward 
God, and charity toward man — a sentiment cultivated in many 
ways, among which are, undoubtedly, the various sectarian forms 
of public worship, and, as I think also, all forms of useful secular 
education. The great discoveries of science for the last thousand 
years, have been but the results of searching God's works. The 
principles of His creation have been sought, and in many 
instances with great success. Our knowledge of the extent of the 
creation has been vastly enlarged by the same means, until the 
universe of the present day, compares with that of the Christian 
Era, as the vast solar orb of the Copernican system, compares 
with the fiat disk of a Roman denarius, bearing the image and 
superscription of a Caesar. In this sense, scientific study is a 
truly religious work. The study of the works of the great Cre- 
ators, and the principles or laws by which nature is uniformly, and 
with no mistakes or failures controlled, leads the student to the 
Author of all. 

The fearful and wonderful structure of man's physical nature 
has been analyzed, and the processes of digestion, respiration, and 
circulation of the blood, have been by science revealed to man- 
kind, forever to increase their reverence and adoration of the 
Divine Hand that made us. 

These and similar researches in God's works have, by books 
of instruction, been brought within the reach even of the children 
in the common schools, as well as of the pupils of all the other 
schools in the land, and have been more or less incorporated into 
all the means of secular instruction. It is not, therefore, a violent 
presumption to suppose that the framers of our last Constitution 
thought that that religion and that morality, as well as that knowl- 



396 Superior Court of Cincinnati. 

Minor ct al. -v. Board of Education of Cincinnati ct al. 

edge, of which they spoke in the Bill of Rights, would be promoted 
by encouraging schools and the means of instruction generally. 

It was no part of their theory that such knowledge, even 
apart from that formal religious instruction which this first resolu- 
tion was intended to dispense with, was godless or immoral in its 
tendencies. But, as I have said, the protection of every denomi- 
nation in its form of public worship, also promoted the religion 
and the morality, of which they spoke in that section. 

The Legislature has not omitted its duty toward religion, 
under this section of the Bill of Rights. It has done precisely what 
was enjoined upon it, passing suitable laws to protect every religious 
denomination in the enjoyment of its own form of public worship, 
and laws under which religious societies, as well as educational 
institutions, can hold property, free from taxation. The amount 
thus remitted every year to the churches is very large, and evinces 
an abiding purpose, on the part of the General Assembly and the 
public, to foster and strengthen all the instrumentalities by which 
religion, morality and knowledge can be promoted. 

It is reasonable to suppose that knowledge and morality would 
be promoted by schools and the means of instruction. This 
clause, however, does not say that "schools, with religious teach- 
ing," or religious " means of instruction," are necessary to " relig- 
ion, morality, and knowledge-," but, that "religion, morality, and 
knowledge, being essential to good government, suitable laws 
shall be passed to protect every religious denomination in its own 
mode of worship," so that they may flourish freely, without 
intruding their peculiar modes upon each other, "and to encourage 
schools and the means of instruction," without limitation ; from 
which it may be safely inferred that the framers of the Constitu- 
tion were satisfied that the encouragement of " schools and the 
means of instruction " in any and all branches of useful learning 
would tend to secure knowledge and morality, and religion in the 
sense in which that term was evidently used. If it is insisted that 
this constitutional provision for religion is not satisfied by " the pro- 
tection of every religious denomination in its own mode of wor- 
ship," but requires laws for the encouragement of " schools and 
the means of instruction" also, it does not follow that they are to 
be schools with special religious teaching ; for the framers of the 



Opinion of Judge Taft. 397 

Minor et al. v. Board of Education of Cincinnati tt al. 

Constitution expressed themselves as satisfied with the encourage : 
ment of schools and the "means of instruction" generally. This 
would be the natural and only construction which we could give 
this clause, even if the provision for the protection "of every 
religious denomination in its own form of worship" were omitted. 

But, let us for a moment suppose that the term religion was 
used by the convention in the narrowest sense claimed for it, viz.: 
the Protestant Christian Religion. It would not follow that 
schools and means of instruction must necessarily be of that char- 
acter. The words in the preamble of that clause, " religion, 
morality, and knowledge," and the subjects of the main declara- 
tion which follows, viz : The protection of the various forms of 
public worship, and " schools and means of instruction" would 
naturally be construed distributively, singula singulis, religion being 
the antecedent of the first part of the declaration, viz : The pro- 
tection of the forms of worship, as knowledge would be the ante- 
cedent of the last ; " schools and means of instruction " being of 
the same nature, and regarded as one. The insertion of this pecu- 
liarly religious instrumentality, viz : " the protection of every 
religious denomination in its own form of worship," which must 
be taken to refer to " religion " in the preamble, and can not pos- 
sibly be taken to refer to " knowledge ;" and designating no other 
" religious " instrumentality, and omitting to qualify " the schools 
and means of instruction" as religious, leaves them to refer directly 
to their proper antecedent, " knowledge," as an essential to good 
government, and only indirectly, if at all, to " religion," which was 
the proper antecedent of the other instrumentality, viz: the pro- 
tection of religious worship. It is not material to determine by which 
of these instrumentalities morality was to be promoted, as it derives 
support from both. 

But schools and the means of instruction, as here described, 
without including any special religious instruction or reading of the 
Bible, are as well adapted to promote " religion," one of the 
essentials to good government, as the protection of every re- 
ligious denomination in its own mode of public worship, is 
adapted to promote knowledge, another essential to good govern- 
ment, while both may fairly be regarded as promoters of 
" morality." 



oq8 Superior Court of Cincinnati. 



Minor et al. v. Board of Education of Cincinnati et al. 



This mode of construction can only become necessary or 
natural, by supposing the term religion, as used in the preamble, so 
restricted in its meaning as not to have relation to all of the sub- 
jects of the following declaration ; in the same manner as the term 
knowledge may be supposed to have no particular relation to the 
protection of forms of denominational worship. As I understand 
"religion," however, in that clause of the Bill of Rights, it, as 
well as "morality" and "knowledge," has a direct relation to 
"schools and means of instruction," whether including special 
religious teaching or not. If the words " morality " and " knowl- 
edge " had been omitted from the preamble of the clause under 
consideration, and the words relating to religious denominations 
had been omitted also, in the declaration itself, so that it should 
read thus : " Religion, however, being essential to good govern- 
ment it shall be the duty of the General Assembly to pass suit- 
able laws to encourage schools and the means of instruction," it 
would not even then bear the construction claimed by the plaintiffs. 
It would only appear that the convention regarded the encourage- 
ment of schools and the means of instruction as favorable to the 
promotion of the religion which they deemed essential to good 
government ; and it would not be possible to hold that the con- 
vention intended to impress a specially religious character upon all 
the schools in the State, and upon every means of instruction. 

A fortiori, from the words as they stand, ^there is no sound 
reason to infer that the framers of the Constitution intended to fix a 
religious character upon all the schools and all the means of instruc- 
tion to be encouraged by suitable laws ; especially upon the 
common schools, which are not named in that connection, but 
which are expressly provided for in another place, viz : art. 6, sec. 
2 without any religious restriction whatever. They must be taken 
to have intended what they have expressed. 

On what ground then can we interfere to compel the Board 
of Education to incorporate religious instruction in the exercises of 
the common schools ? 

If it is now in the common schools, it has been placed there 
by action of the Board. If it is to be, hereafter, incorporated with 
the other teaching in the schools, it will be through the same body, 
unless the Court should take the management of that department. 



Opinion of Judge Taft. 399 

Minor et al. v. Board of Education of Cincinnati et al. 

That the school laws contain no such requirement is conceded, 
and I find no foundation for it in the Bill of Rights. 

If then, we interfere to restrain the discretion of the Board 
on this subject, as prayed for in the petition, we shall assume a 
power, expressly given to that body. For by section 9 of the 
school act of January 27, 1853, 

" The Board shall have the superintendence of all the com- 
mon schools in the city, and from time to time to make such regu- 
lations for the government and instruction of the children therein, 
as shall appear to them proper and expedient." 

" And generally to do and perform all other matters and 
things pertaining to the duties of their said office which may be 
necessary and proper to promote the education, morals, and good 
conduct of the children in said schools." 

And by the 12th section of the same act, 

"The common schools in the several districts of the city,., 
shall at all times be equally free and accessible to all white children 
not less than six years of age, who may reside in said city, andi 
subject only to such regulations for their admission, government, 
and instruction, as the Board of Education may from time to time 
provide." 

No broader discretion could be given by a statute to a Board 1 
"in the selection of the course of studies, and in the management of 
the schools generally. The statute requires no formal worship, 
nor does it require religious instruction in the schools, but gives the 
whole subject of their government and instruction, unqualifiedly, 
into the hands of the trustees, who are to be selected by the peo- 
ple. If the Board should exclude any particular branch of educa- 
tion, it would not justify the Court in interfering. For the selection. 
of the instruction to be given and of the books to be read, has ; 
been entrusted, not to us, but to them. If we should find ourselves 
differing with the Board in our opinion of what its duty required it 
to incorporate in the course of instruction, we should have first to 
consider which of us is by law entitled to decide that question. 

Neither of us can change the law. It is as binding on the 
Court, as on the Board of Education. The law has expressly 



400 Superior Court of Cincinnati. 

Minor et al. <v. Board of Education of Cincinnati et al. 

conferred that discretion upon that body. I will not stop to give 
illustrations, which are obvious, and at hand, on this point. 

But, if the plaintiffs were right, in construing the words 
" schools and the means of instruction," to mean "schools" with 
religious teaching and religious "means of instruction," it would not 
help the plaintiffs' case, because this clause in the Bill of Rights is 
made expressly to depend on legislation, and can have no force 
propria vigor e : and the Legislature has never given effect by law to 
any such construction of it as is now claimed. 

This provision of the Constitution is addressed to the General 
Assembly, and that body is made the judge of what laws are suit- 
able for the purpose. These school acts are the result of a judi- 
cial discretion in the General Assembly to decide what are " suit- 
able laws," as well as of legislative power to pass them. 

That this clause of the Bill of Rights is addressed to the Gen- 
eral Assembly or law-making power, can not be disputed. 

If the General Assembly should even neglect to act by pass- 
ing laws encouraging schools, it might be great unfaithfulness to 
the Constitution on its part, but the judiciary could not interfere, 
because the Constitution has entrusted that duty to the General 
Assembly. For a non-performance of that duty, the General 
Assembly would be responsible to its constituents. If the Gen- 
eral Assembly, instead of neglecting its duty on the subject, passes 
laws, these laws form the rule for the Board. The General Assem- 
bly has the discretion expressly conferred uponk judicial, as well as 
legislative, to accomplish a purpose by " suitable laws," and there 
is no other source from which " suitable laws," can be derived. 
Courts can not make them. And those which have been passed, 
must be taken to be " suitable." This principle is not novel, or 
unreasonable. 

In the case of Gillenwater v. Mississippi and Atlantic R. R. Co., 
13 Ills. R. I., it was urged that a restriction upon railroad corpora- 
tions by the general railroad law was a violation of the provision of 
the Constitution which enjoined upon the Legislature, "to encour- 
age internal improvement by passing liberal general laws of incor- 
poration for that purpose." The Court said : " This is a constitu- 
tional command to the Legislature, as obligatory on it as any other 
of the provisions of that instrument, but it is one which can not be 



Opinion of Judge Taft. 401 

Minor et al. t>. Board of Education of Cincinnati et al. 

enforced by counts or justice. It addresses itself to the Legisla- 
ture alone, and it is not for us to say whether it has obeyed the 
behest in its true spirit. Whether the provisions of this law, are 
liberal, and tend to encourage internal improvements, is matter of 
opinion about which men may differ ; and as we have no authority 
to revise legislation on this subject, it would not become us to 
express our views in relation to it." 

The case of Maloyv. The City of Marietta, 1 1 O. S. R. 636, 
turns on the same principle. That case rose on the sixth section 
of article xiii, of the Constitution, which is, " The General As- 
sembly shall provide for the organization of cities and incorpor- 
ated villages by general laws, and restrict their power of assess- 
ment, so as to prevent the abuse of such power." It was claimed 
that the General Assembly had granted an " unrestricted " power 
of making such assessments. 

The Court say, p. 638, " Were this true, it might be ques- 
tionable whether the Courts could, for that reason, hold the grant of 
power to be void. The Constitution clearly imposes a duty upon 
the Legislature, but does not direct when or how it shall be exer- 
cised." 

Speaking of this provision and the duty thereby enjoined, 
Judge Ranney, in Hill v. Higdon, 5 O. S. R. 248, says " a failure 
to perform this duty, may be of very serious import, but lays no 
foundation for judicial correction." It was further held that the 
" mode and measure" of restriction, rested with the Legislature, 
and could not be reviewed by the Courts. 

The Supreme Court of the United States in the case of 
Groves v. Slaughter, 15 Peter's Rep. 449, which was very much 
considered, recognized and acted upon the same principle. The 
suit in that case was brought upon a note given for slaves imported 
into Mississippi, and the question was, whether the consideration 
was void under the Constitution of that State of 1832, which pro- 
vided, "That the introduction of slaves into this State, as mer- 
chandize, or for sale, shall be prohibited, from and after the first 
day of May, 1833." The Constitution of 18 17 had declared that 
the Legislature should have power to prevent slaves being brought 
into the State as merchandize. The time and manner in which it 
was to be done, was left to the discretion of the Legislature. By 



402 Superior Court of Cincinnati. 

Minor et al. i>. Board of Education of Cincinnati et al. 

the Constitution of 1832, it was no longer left a matter of discre- 
tion when this prohibition was to take effect, bnt the first day of 
May, 1833, was fixed as the time. 

The Court says, Judge Thompson giving the opinion : " But 
there is nothing in this provision which looks like withdrawing the 
whole subject from the Legislature." " It looked to legislative 
enactments to carry it into full operation." The Court proceeded 
to say : "Admitting the Constitution is mandatory upon the Leg- 
islature, and that they have neglected their duty in not carrying it 
into execution, it can have no effect upon the construction of this 
article. Legislative provision is indispensable to carry into effect 
the object of this prohibition. The enacting part of the article, 
'■Shall he prohibited,' is addressed to the Legislature." 

That was a strong case, because the injunction was direct 
upon the Legislature, that by a specified time a specific thing 
should be done, viz : The importation of slaves should be pro- 
hibited. 

In the present case, the framers of the Constitution have con- 
ferred a large judicial discretion upon the General Assembly, to 
select such legislative provision as, in its judgment, shall be suit- 
able to accomplish the purposes prescribed ; and the General 
Assembly has, really, left no room for argument upon the proper 
means of accomplishing that purpose, because it has given an 
authentic and binding construction, when it passed the law under 
which the Board of Education was created and the common 
schools organized. Not only has it decided this question when it 
passed the common school laws without hinting at religious instruc- 
tion, but it has decided the same question again and again, as often 
as laws have been passed for the encouragement of other schools 
and other means of instruction, by incorporation and otherwise, 
sometimes requiring, and sometimes not requiring, provision for 
religious culture. 

Such a claim as that now made by the plaintiffs is sustained 
by no adjudications on like statutes, even where the construction 
of the constitutional provision was not doubtful, as it was in the 
case of Groves v. Slaughter. How can this Court make such a 
precedent in a case where the General Assembly has actually 



Opinion of Judge Taft. 403 

Minor et al. it. Board of Education of Cincinnati tt al. 

carried out the natural and the literal construction of the pro- 
vision ? 

It has been suggested, that this reasoning does not apply, 
because the Board of Education were exercising legislative powers, 
and so were acting in the capacity of the General Assembly under 
the Constitution, and were bound by it. A moment's reflection 
will show that this can make no difference whatever. For, if we 
were to admit the suggestion that the Board was, for this purpose, 
the General Assembly, then it has the same power over the sub- 
ject, and its construction is as binding as that of the General 
Assembly itself. 

I hold, then — 

That the defendants appear to have acted, in the adoption of 
this first rule, with due respect for the rights and opinions of all 
the people entitled to the benefit of the common schools. 

That the rule is not in conflict with the seventh section of 
the Bill of Rights, by the fair and natural construction of the 
language of that section. 

That, if the construction were doubtful, the General Assem- 
bly, on which the Constitution had devolved the power and duty 
of determining what were suitable laws under said section, has per- 
formed its duty by passing the common school laws, and has 
thereby made a decision, from which there is no appeal except to 
the people, that these are suitable laws '' to encourage schools." 

That it is our duty to ascertain what these school laws are, and 
abide by them, as we can not change them or make others, or 
decide even what they ought to be. 

That the school laws thus enacted, confer on the Board or 
Education complete discretionary power over the government and 
management of the common schools, including power to adopt 
this rule, which is not in conflict with any law or constitutional 
provision ; and 

That this Court, in assuming to restrain the Board from car- 
rying said rule into effect, is going beyond its proper sphere to 
decide a question which the law has placed within the exclusive 
discretion of the Board of Education. 



404 Superior Court of Cincinnati. 

Minor et ah <u. Board of Education of Cincinnati et al. 



II. 

We come now to consider the second resolution. 

In the absence of any statute whatever on the subject, the 
School Board, many years since, adopted the rule requiring the 
opening of the schools with the reading from King James' version 
of the Bible, and appropriate singing. In the like absence of any 
statute, the present Board, of which the defendants are the major- 
ity, repealed the same rule; and the injunction has been applied for 
against the Board, to restrain its action under the resolution. It is 
obvious that all the considerations which have been presented in 
support of the power of the Board to adopt the first rule, apply 
also to their power to adopt this ; while the constitutional objec- 
tion urged against the first, that it excluded all religious instruction 
from the common schools, has no application. Such seems to 
have been the view taken of the whole subject by the learned 
counsel for the plaintiffs, who have rested their entire argument 
on their objection to the first rule, and have presented none what- 
ever against the second. Nor can this be regarded as an inad- 
vertence ; for the second rule was not overlooked. It was con- 
ceded that the Board had a discretion to regulate the course of 
studies and reading in the schools, but its power to exclude all 
religious instruction, as was done by the first rule, was denied. 
But it has not really been argued, #nd I am utterly at a loss to 
conceive how it can be argued, in view of our Constitution and 
laws, that the Board had exceeded its powers by passing the repeal- 
ing resolution. If the Board of Education have not power to say, 
whether the schools shall be opened with the reading of the Bible 
and singing, who has that power ? It is not claimed that the Leg- 
islature has prescribed any such opening of the schools. The 
Board itself made the rule, which no other person or body, under 
the laws, Gould do, and now has repealed it. 

Whether this opening exercise be regarded as worship or as 
religious instruction, or simply as a lesson in reading and singing, 
it falls equally within the discretion of no person or body but the 
Board of Education. The plaintiffs, by their petition, say that a 
former Board removed all objection to this opening exercise, by 



Opinion of Judge Taft. 405 

Minor et al. v. Board of Education of Cincinnati et al. 

excusing all children from joining in it whose parents made 
a request to that effect. If the Constitution requires the opening 
of all the schools by reading the Bible and singing, there can be 
no exceptions; and the repeal of the exercise as to all the chil- 
dren, is not less constitutional than its repeal as to part. 

But there is no clause in the Constitution requiring that the 
schools shall be opened by reading of the Bible and singing, or 
that the Bible shall be read or not read in the schools. It is proper 
here to remark, that there is a plain and practical distinction between 
using the Bible as a book of reading lessons, and reading from it 
with appropriate singing as an opening exercise every morning. I 
shall have occasion to recur to this distinction in another connec- 
tion. 

The extent of the discretion of a school board or committee 
on the question of ruling the Bible in or ruling it out of the 
schools, as a book of reading lessons, was passed upon in Donahue 
v. Richards, 38 Maine R. 401, where the plaintiff had been 
expelled from the school because she refused to read in King 
James' version, but was willing to read in the Douay version. 
The Court sustained the power and discretion of the Board over the 
whole subject, holding that "both" versions "undoubtedly might 
be used in the schools, or both might be excluded therefrom." If 
religious instruction is to be given in the schools, the Board of 
Education is to provide for it ; and if that body should prefer the 
religious instruction contained in McGuffey's Readers, or the other 
books which are supposed by the plaintiffs' counsel to contain 
religious instruction, it is not our province to determine which is 
the best plan. Nor is the Board accountable to the Court for the 
specific course of reading or study by which religious or other 
instruction is to be given. Nothing is clearer than that in the 
selection of the means of instruction in the common branches of 
science the Board of Education, and no other body, has complete 
and absolute discretion. It can try one plan, repeal it, and try 
another. In exercising such a discretion the Board would be at 
liberty to regard the opinions and conscientious scruples of the 
people whose children were entitled to the benefit of the schools. 

In Donohue v. Richards, 38 Maine R. 413, to which I have 
referred, after an elaborate opinion fully sustaining the discretionary 



406 Superior Court of Cincinnati. 

Minor et al -v. Board of Education of Cincinnati et al. 

power of the school committee, the Court placed its decision dis- 
tinctly upon that discretion, as not subject to judicial correction. 
The Court closed by declaring : 

" That it was the duty of those to whom this sacred trust was 
confided, to discharge it with magnanimous liberality and Christian 
kindness : that while the law should reign supreme, and obedience 
to its commands should ever be required, yet in the establishment 
of the law which was to control, there was no principle of wider 
application and of higher wisdom, commending itself alike to the 
broad field of legislative, and the more restricted one of municipal 
action, than the precept, 'All things whatsoever ye would that men 
should do to you, do ye even so to them, for this is the law and 
the prophets.'" 

The idea that the Christian religion was entitled to any higher 
or other privileges, before the law, than " the Pagan and Mormon, 
the Brahmin and the Jew, the Swedenborgian and the Buddhist, 
the Catholic and the Quaker," was rejected, and the Sabbath, and 
the use of the Bible in the schools, alike placed upon civil, and not 
religious, considerations, citing with approbation, and quoting from 
the opinion of the Supreme Court of Ohio, in Bloom v. Richards, 
2 Ohio St. R. 388, on the subject. 

There is, then, no hypothesis of fact or reason presented, or 
supposed, by any argument that has been made in this case, or which 
I can imagine, by which this Court can be justified in restraining 
the action of the Board of Education under the second rule. I 
hold that, whether the reading of the Bible and singing as practiced 
in the common schools be regarded as worship, religious instruction, 
or as simple reading and singing lessons, its introduction, continu- 
ance or discontinuance is entirely within the discretion of the 
Board of Education. 



III. 

Having come to the conclusion, that the Board was acting 
within its sphere, when it passed the resolutions, and so was not 
amenable to judicial censure, I might here stop and rest my opinion 
upon the power of the Board of Education. 



Opinion of Judge Taft. 407 

Minor et al. v. Board of Education of Cincinnati et al. 

But the defendants have not been content to rest the resolu- 
tions simply on their power to pass them. They insist that in 
passing them they discharged a solemn duty under the Constitution 
and laws of the State : a duty, which had become urgent by reason 
of the great and discordant variety of religious faiths in the city ; 
that they had found it impossible to provide religious instruction, 
without offending the consciences of many ; and that practically 
about one-third to two-fifths of the children entitled to the benefit 
of the schools, were excluded by the rules, as they stood before the 
resolutions were passed ; that the compulsory reading from the 
King James' version of the Bible, with singing, as an opening 
exercise in the schools, daily, is regarded as a form of worship, and 
is in violation of that part of the seventh section of the Bill of 
Rights, which declares that : 

" No person shall be compelled to attend, erect or support 
any place of worship, or maintain any form of worship against his 
consent ; and no preference shall be given by law to any religious 
society : nor shall any interference with the rights of conscience 
be permitted." 

All sectarian forms of worship are clearly excluded by the 
Bill of Rights from the common schools, which are maintained at 
the-expense of all, and for the equal benefit of all, unless such form 
of worship is acquiesced in by the parties interested. 

It is to be observed here, that these provisions of the Bill of 
Rights, for the protection of rights of conscience, are not left for 
the enactment of suitable laws, by the General Assembly. They 
operate on the Legislature and people alike. The General Assem- 
bly is forbidden to pass laws giving religious preferences : and " no 
person shall be compelled to attend or maintain any form of 
worship, nor shall any interference with the rights of conscience 
be permitted." 

No legislation is needed to give effect to these provisions ; but 
they limit legislation, and form rules for Courts. In this respect, 
they differ from the last clause in the section, on which the plain- 
tiffs rely. 

What then is the character of the morning exercise of reading 
a passage in the Bible, and appropriate singing in the schools daily ? 



4° 8 Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et al. 

I think we are bound to regard it both as an act of worship, and a 
lesson of religious instinction. That it is an act of worship, the 
well known custom of the country, and indeed, of Christendom 
shows. For, by that custom, such formal reading and singing, at 
the opening of the duties of the day, uniformily mean worship. 

It is intended to raise the thoughts of the participants to the 
Father of all, to read His Word, and to sing His praise. It is as 
a special message from Him that the passage from the Bible is 
read. And so I am bound to suppose the plaintiffs regard it. For 
if it was regarded simply as an ordinary reading lesson, it would not 
have been claimed that it was not subject, like other reading lessons, 
to be changed or discontinued under the rules of the Board. 

The singing of Protestant hymns may be used to communi- 
cate dogmatic instruction as effectually as the Bible itself. 

I can not doubt, therefore, that the use of the Bible with the 
appropriate singing, provided for by the old rule, and as practiced 
under it, was and is sectarian. It is Protestant worship. And its 
use is a symbol of Protestant supremacy in the schools, and as 
such offensive to Catholics and to Jews. They have a constitu- 
tional right to object to it, as a legal preference given by the State 
to the Protestant sects, which is forbidden by the Constitution. 

And here, I again refer to the obvious distinction between the 
use of the Bible by way of worship, and its use as a reading book. 
The Court in Donahue v. Richards, 38 Me. R. already referred to, 
placed their decision upon the ground that the use of the Bible in 
that case was as a reading book, and not by way of worship 
or religious instruction. The question, whether the Board of 
Education under our Constitution could make the Bible a read- 
ing book in the schools, contrary to the conscientious scruples 
of the people, does not, in my opinion, arise in this case. For it is, 
as a form of worship and religious instruction only, and not as a 
reading book, that it is used in our schools, and as such^ those who 
object to it, have a right to regard it ; and that is the ground, as I 
have understood these proceedings, on which this suit has been 
brought. 

The answer states that the children of Roman Catholic parents, 
equal to at least half the entire number of children who attend the 
common schools, are kept away by reason of this rule ; that a large 



Opinion of Judge Taft. 409 

Minor et al. -v. Board of Education of Cincinnati ctal. 

number of Jews, who have children in the schools, object to the 
rule from conscientious reasons. 

The counsel for the plaintiffs insist, that the Bible can, in no 
just sense, be regarded as sectarian, and that the conscientious scru- 
ples alleged, are not to be regarded. 

The facts on which this question turns, are simple. The 
Roman Catholic uses a different version of the Bible and includes 
the Apocrapha, as part of it, which are excluded from the Protestant 
Bible. The Protestant Bible is the King James' version, which 
the Catholics regard as not only not a correct translation, but as 
distorted in the interest of the Protestant, as against the Roman 
Catholic Church. They object, therefore, on conscientious 
grounds, to having their children read it or hear it read. They say 
and believe, that it is a source of fatal religious error. 

Nor is the incorrectness of the translation the only objection 
they entertain to the reading of the Bible in these schools. They 
hold, that the Bible is entrusted to the Church, and that it is not a 
suitable book to be read by, or to, children without explanation by 
persons authorized by the Church and of sufficient learning to 
explain and apply it. 

We are not at liberty to doubt the conscientious objections, 
on the part of the Catholic parents to placing their children in the 
schools, while the schools are opened by the reading of the 
Protestant Bible and singing. 

We have this unequivocal evidence of the reality of their con- 
scientious scruples, that, when they have paid the school-tax which 
is not a light one, they give up the privilege of sending their child- 
ren, rather than that they should be educated in what they hold to 
be, and what, without the adoption of one, or both of these resolu- 
tions, must be fairly held to be Protestant schools. This is too large a 
circumstance to be covered up by the Latin phrase de minimis non 
curat lex, to which resort is sometimes had. These Catholics are 
constrained every year to yield to others their i right to one-third of 
the school money, a sum of money averaging not less than $200,000 
every year, on conscientious grounds. That is to say, these peo- 
ple are punished every year for believing as they do, to the extent 
of f 200,000, and to that extent, those of us who send our child- 
ren to these excellent common schools, become beneficiaries of the 



410 Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati tt al. 

Catholic money. We pay for our privileges so much less than 
they actually cost. Mercantile life is supposed to cultivate in some 
a relish for hard bargains. But if it were a business matter, and 
not a matter of religious concern, could business men be found 
willing to exact such a pecuniary advantage as this ? I think it 
would shock the secular conscience. 

The authority of the Archbishop of Cincinnati was, however, 
used in this connection, to show that these resolutions, if carried out, 
would not be effectual to gather the children of Catholics into the 
public schools, which they, in common with other tax-payers, sup- 
port. It appears that the Archbishop, like the plaintiffs, is not 
satisfied with secular education in the schools. In principle, he 
stands where they do, with the exception that they are in posses- 
sion. Being out of possession, he would prefer to get out of the 
public treasury the share of the school fund, proportioned to the 
Catholic population, and apply it to the support of the parochial 
schools with Catholic religious instruction. If the Catholics were 
in possession, as the plaintiffs are, with the Douay version and 
Catholic forms of worship, perhaps he might still be willing to 
divide the money, and perhaps not, in which latter case he would 
occupy about the same position now occupied by the plaintiffs in 
this suit. 

It is said that the Catholic clergy demand their share of the 
fund, to be used in carrying on schools under their control. That 
can not be done under the Constitution. But this affords no reason 
why the Board of Education should not grant to the Catholic 
people, what the Bill of Rights guarantees to every sect, that their 
rights of conscience shall not be violated, and that they shall not 
be compelled to attend any form of worship, or to maintain it 
against their consent, or be compelled to submit to religious prefer- 
ences, shown by the government to other religious societies. 

It is not for a court to anticipate, before judgment, that any 
party will not be satisfied with what the law gives him, nor are 
courts accustomed to withhold what is due because something else 
is asked. 

Another numerous class of heavy tax-payers, the Jews, 
object to the old rule. But it is claimed on behalf of the plain- 
tiffs, that the Jews have met with something like a conversion, 



Opinion of Judge Toft. 411 

Minor et al. -v. Board of Education of Cincinnati et al. 



and have become reconciled to the New Testament. That 
they held out for a while, but afterward came in, and there was no 
further difficulty with them, and that their case need not to have 
been further regarded. There is too much evidence of dissent on 
their part, from the old rule, to permit us to conclude that they 
have ever intended to waive their rights of conscience and of 
religious liberty. Like the majority of us, the Jews have received 
their faith from their ancestors, and according to that historic faith, 
the assertion in the New Testament that Jesus of Nazareth is 
God, is blasphemy against the God of Israel. If a Protestant 
Christian would object to have the common schools daily opened 
with the forms of worship peculiar to the Catholic Church, which 
worships the same triune God with him, how much more serious 
must be the objection of the Jew, to be compelled to attend, or 
support, the worship of a being as God, whose divinity and super- 
natural history he denies ? 

The truth in this matter undoubtedly is, that the Jews, like 
many others, have found out that our common schools are munifi- 
cently endowed, and, in general, well conducted, so that the privi- 
lege of attending them is inestimable, and they have wisely concluded 
to secure for their children the secular education of the common 
schools, and attend to their religious nurture at home and in their 
own organizations. A faith which had survived so much persecu- 
tion, through so many centuries, they may well have risked in the 
common schools of Cincinnati, though at some cost of religious 
feeling. 

It is in vain to attempt to escape the foree of the clauses of 
the Bill of Rights by assuming that the Protestant Christian reli- 
gion was intended in the Bill of Rights, and that the sects of Pro- 
testant Christians only were, therefore, entitled to protection. 
Between all forms of religious belief the State knows no differ- 
ence, provided they do not transgress its civil regulations — a 
mighty contrast to some times and some countries, which have 
boasted of their religious liberality, because the ruling sects have 
tolerated the dissenting minority, as a nuisance, which they have 
magnanimously forborne to abate. 

But the principle of equality of right, and nothing less than 
that, is now well established in Ohio, if not in all the other Amer- 



412 Superior Court of Cincinnati. 

Minor et al. y. Board of Education of Cincinnati et al. 

ican States, by the unequivocal language of our Constitution and 
by judicial decisions. 

In Bloom v. Richards* 2 Ohio St. R, 390— I, our Supreme 
Court, by a unanimous opinion, in a case involving the validity of 
a contract made on Sunday, said : 

ct But the Constitution of Ohio having declared 'that all men 
have a natural and indefeasible right to worship Almighty God 
according to the dictates of conscience ; that no human authority 
can, in any case whatever, control or interfere with the rights of 
conscience ; that no man shall be compelled to attend, erect, or 
support any place of worship, or to maintain any ministry against 
his consent ; and that no preference shall ever be given by law to 
any religious society or mode of worship, and no religious test shall 
be required, as a qualification to any office of trust or profit,' it 
follows that neither Christianity, or any other system of religion is 
a part of the law of this State. 

We sometimes hear it stated, that all religions are tolerated in 
Ohio, but the expression is not strictly accurate ; much less accu- 
rate is it to say, that one religion is a part of our law, and all others 
only tolerated. 

It is not by mere toleration that every individual here is pro- 
tected in his belief or disbelief. He reposes not upon the leniency 
of government, or the liberality of any class or sect of men, but 
upon his natural indefeasible rights of conscience which, in the lan- 
guage of the Constitution, are beyond the control or interference 
of anv human authority. We have no union of Church and State, 
nor has our government ever been vested with authority to enforce 
any religious observance simply because it is religious. Of course, 
it is no objection, but, on the contrary, is a high recommendation 
to a legislative enactment based upon justice or public policy, that 
it is found to coincide with the precepts of a pure religion ; but the 
fact is nevertheless true, that the power to make the law rests in 
the legislative control over things temporal and not over things 
spiritual. Thus the statute upon which the defendant relies, 
prohibiting common labor on the Sabbath, could not stand for 
a moment as a law of this State, if its sole foundation was the 
Christian duty of keeping that day holy, and its sole motive, 
to enforce the observance of that duty. For no power over 
things merely spiritual, has ever been delegated to the govern- 
ment, while any preference of one religion, as the statute would 
give upon the above hypothesis, is directly prohibited by the Con- 
stitution. Acts, evil in their nature, or dangerous to the public 
welfare, may be forbidden and punished, though sanctioned by one 



Opinion of Judge Taft. 413 

Minor et al. -v. Board of Education of Cincinnati et al. 

religion and prohibited by another ; but this creates no preference 
whatever, for they would be equally forbidden and punished if all 
religions permitted them. 

Thus no plea of religion could shield a murderer, a ravisher, 
or a bigamist, for the community would be at the mercy of super- 
stition, if such crimes as these could be committed with impunity, 
because sanctioned by some religious delusion." 

The same Court two years later, in McGatrick v. Wasson, 4 
O. S. R. 571-2, again by unanimous opinion said : 

" But was it a work of necessity within the meaning of the act ? 
In answering this question, we must always keep in mind, that it is no 
part of the object of the act to enforce the observance of a religious 
duty. The act does not to any extent, rest upon the ground that it is 
immoral or irreligious to labor on the Sabbath any more than upon 
any other day. It simply prescribes a day of rest, from motives of 
public policy and as a civil regulation ; and as the prohibition itself 
is founded on principles of policy, upon the same principles certain 
exceptions are made, among which are 4 works of necessity and 
charity.' In saying this I do not mean to intimate, that religion 
prohibits works of necessity or charity on the Sabbath, but merely 
to show that the principles, upon which our statute rests, are wholly 
secular, and that they are none the less so because they may hap- 
pen to concur with the dictates of religion. Thus the day of rest 
prescribed by the statute, is the Christian Sabbath, yet so entirely 
does the act rest upon grounds of public policy, that, as was said 
in Bloom v. 'Richards, 2 O. S. R. 391, 392, it would be equally con- 
stitutional and obligatory, did it name any other day, and it derives 
none of its force from the fact that the day of rest is Sunday. For, 
as was also said in that case, no power whatever is possessed by 
the Legislature over things spiritual, but only over things temporal; 
no power whatever to enforce the performance of religious duties, 
simply because they are religious ; but, only within the limits of the 
Constitution, to maintain justice and promote the public welfare. 

Unless then, we keep constantly in mind that the act rests 
upon public policy alone, we shall be in great danger of giving it a 
wrong construction : and instead of reading it in the light of the 
Constitution, which prohibits all religious tests and preferences, 
find ourselves led away from its meaning, by the influence of our 
own peculiar theological tenets." 

• The framers of our last Constitution were jealous of the am- 
bition of sects. It forbids the imposition of their respective forms 



4*4 Superior Court of Cincinnati. 

Minor et al. v. Board of Education of Cincinnati et al. 

of worship on each other, and forbids that any one of them shall 
have any exclusive right to, or control of, any part of the school 
fund. Now, as they can not impose their respective forms of 
worship upon each other, and can not divide the school fund, it 
follows, that, while they may and ought to unite in the common 
schools, they must separate in their worship, unless waiving their 
religious differences, they agree to unite in their worship also. I 
am very far from depreciating the history and the usefuluess of the 
religious sects. They have roused the energies of nations to 
heroic achievements ; and, beside cherishing earnest piety and 
strong faith in God, they have organized efficient charities for the 
poor and distressed. But they have not always been tolerant, and 
it is still one of their characteristics to ignore the conscientious 
scruples of each other. 

Each sect feels a comfortable assurance that it is not mistaken 
in its faith, and must be excused, if it can not appreciate the faith, 
or want of faith, in others. 

But nevertheless, the idea, that a man has less conscience 
because he is a Rationalist, or a Spiritualist, or even an Atheist, 
than the believer in any one of the accepted forms of faith, may be 
current, but it is not a constitutional idea, in the State of Ohio. 

No sect can, because it includes a majority of a community 
or a majority of the citizens of the State, claim any preference 
whatever. It can not claim that its mode of worship or its religion 
shall prevail in the common schools. Nor does it make the case 
any better, if several sects agree in a certain degree and kind of 
religious instruction and worship, among themselves, though 
together forming a large majority of the community or State. So 
long as there are any, who do not believe in or approve of their 
mode of religious worship or instruction, they can not insist that it 
is not sectarian, or that any non-believing tax-payer shall be com- 
pelled to submit to it in the common schools. 

While the Court will take cognizance of the existence 
of the Christian religion and of the Protestant religion, it is 
only for the purpose of preserving civil peace and order, and the 
welfare of the State; and for the same purpose, it will take cogni- 
zance of the existence of every sect. The State protects every 
religious denomination in the quiet enjoyment of its own mode of 



Opinion of Judge Taft. 415 

Minor et dl. v. Board of Education of Cincinnati et al. 

public worship. It protects them from blasphemy, when the pub- 
lic peace and order require it. 

It is, therefore, an entire mistake, in my opinion, to assert, 
that the Protestant Christian religion has been so identified with 
the history and government of our State or country, that it is not 
to be regarded as sectarian under our Constitution ; or, that, when 
the Bill of Rights says that " religion, morality and knowledge 
being essential to good government," it means the Protestant 
Christian religion. That would be a preference, which the same 
section expressly disclaims, and emphatically forbids.* 

To hold otherwise, and that Protestant Christians are entitled 
to any control in the schools, to which other sects are not equally 
entitled, or that they are entitled to have their mode of worship 
and their Bible used in the common schools, against the will of the 
Board of Education, the proper trustees and managers of the 
schools/is to hold to the union of Church and State, however we 
may repudiate and reproach the name. Nor is it to be presumed, 
that the cause of genuine religion, or of the Bible, can be perma- 
nently advanced by a struggle for this kind of supremacy. The 
government is neutral, and, while protecting all, it prefers none, 
and it disparages none. The State, while it does not profess to 
be Christian, exercises a truly Christian charity toward all. Its 
impartial charity extends to all kinds of Protestants, Roman Catho- 
lics, jews and Rationalists alike, and covers them with its mantle 
of protection and encouragement ; and no one of them, however 
numerous, can boast of peculiar favor with the State. 

Nothing but the severset experiences of religious persecution 
in other countries, and in other times, could have planted liberty 
of religious opinion so deeply and so ineradicably in the American 
State governments. It was not realized under the Colonial govern- 
ment, which, though far removed from, were still closely allied to, 
the laws and religious institutions of the mother country. Roger 
Williams was greatly in advance of his time, and seemed to com- 
prehend the principle of religious liberty. But even he dared not 
to claim its full realization, and what he claimed was not allowed. 

" There goes many a ship to sea," said he, " with many hun- 
dred souls in one ship, whose weal and woe is common, and is a true 



4i 6 Superior Court of Cincinnati. 

Minor ei al. v. Board of Education of Cincinnati et al. 

picture of a commonwealth, or human combination, or society. It 
hath fallen out sometimes, that both Papists and Protestants, Jews 
and Turks may be embarked in one ship ; upon which supposal, I 
affirm that all the liberty of conscience I ever pleaded for, turns 
upon these two hinges, that none of the Papists, Protestants, Jews 
or Turks be forced to come to the ship's prayers or worship, nor 
compelled from their own particular prayers or worship, if they 
practice any." 

There is no more striking evidence of the advance which has 
been made in religious liberty, since the time of Roger Williams, than 
is to be found in the American State Constitutions of the present 
day, and in the most intelligent comments upon them by approved 
writers and jurists. The ideal is absolute equality before the law, 
of all religious opinions and sects, provided they do not infringe the 
laws enacted purely for civil government, with no symbols of the 
superiority of any faith over others, upheld by the power of the 
State. If this ideal has not been practically reached in all the older 
States, it may be ascribed to the fact that in several of them, as in 
Massachusetts and Connecticut, an established church was pre- 
served till a comparatively recent period. And it is to be borne in 
mind that the adjudications of the Courts in a State with a church 
establishment maintained by law, are not applicable to the condi- 
tion of religious equality existing in Ohio. 

Mr. Cooley, in his valuable work, recently published, on Con- 
stitutional Limitations, discusses, with great intelligence and force, 
the subject of religious liberty and the rights of conscience, under 
the American State Constitutions. His opinion is strongly expressed 
in favor of secular instruction in the schools. In the course of 
the discussion of the American Constitutions on this subject, and 
of the adjudication thereunder, he makes an interesting statement 
of things not permitted under American Constitutions, in the 
interest of religious liberty and rights of conscience. He says : 

" Those things which are not lawful under any of the Ameri- 
can Constitutions may be stated thus : 

" i. Any law respecting an establishment of religion. The 
Legislatures have not been left at liberty to effect a union of 
Church and State, or to establish preferences by law in favor of 
any one religious denomination or mode of worship. There is 



Opinion of Judge Taft. 417 

Minor et al. -v. Board of Education of Cincinnati ct al. 

no religious liberty where any one sect is favored by the State and 
given an advantage by law over other sects. Whatever establishes 
a distinction against one class or sect is, to the extent to which the 
distinction operates unfavorably, a persecution ; and if based on 
religious grounds, is religious persecution. 

" It is not toleration which is established in our system, but 
religious equality. 

" 2. Compulsory support, by taxation or otherwise, of relig- 
ious instruction. Not only is no one denomination to be favored 
at the expense of the rest, but all support of religious instruction 
must be entirely voluntary." 

This great principle of equality in the enjoyment of religious 
liberty, and the faithful preservation of the rights of each individ- 
ual conscience is important in itself, and is essential to religious 
peace and temporal prosperity, in any country under a free govern- 
ment. But in a city and State whose people have been drawn 
from the four quarters of the world, with a great diversity of 
inherited religious opinions, it is indispensable. When the Board of 
Education, therefore, which represents the civil power of the State 
in the schools, finds objection made to the use of the Protestant Bible 
and Protestant singing of Protestant hymns, on conscientious 
grounds, and concludes to dispense with the practice in the sehools, 
it is no just ground to charge on the Board hostility to the Bible, 
or to the Protestant religion, or to religion in general. The Bible 
is not banished, nor is religion degraded or abused. The Board 
have simply aimed to free the common schools from any just con- 
scientious objections, by confining them to secular instruction, and 
moral and intellectual training. This, in my opinion, was, under 
the circumstances, just, and, under the Constitution of Ohio, a 
duty which they could not omit without violating the rights of 
conscience of those who, on conscientious grounds, objected to the 
practice under the old rule. 



On the whole case, my conclusions are that the Board of Educa- 
tion had the power to pass both the first and the second of these Reso- 
lutions, and whether expedient or inexpedient, this Court has no lawful 
authority to restrain it from acting under either of them ; that, upon 



41.8 Superior Court of- Cincinnati. 

Minor et al. -v. Board of Education of Cincinnati et al. 

the pleadings and the evidence in the case, the Board, in adopting the 
first of these resolutions, acted with a justice and liberality ivarranted 
by the Bill of Rights, and made necessary by the facts; and that, in 
adopting the second, it perfor?ned a duty imposed upon it by the lan- 
guage and the spirit of the Constitution of Ohio. 



JUDGMENT. 

February 18, 1 8 70. 

John D. Minor and others \ 

v. ( Superior Court of 

The Board of Education of Cincinnati/ Cincinnati. 

AND OTHERS J 

This cause was heard upon the pleadings, testimony, and argu- 
ments of the counsel of all the parties, and the Court having duly 
considered thereof, finds that the resolutions passed by the said 
Board of Education on the 1st day of November, a. d. 1869, and 
which are set fo.rth in the petition, were passed without warrant 
or authority in law, and are in violation of the provisions of the 
seventh section in the first article or the Bill of Rights in the 
Constitution of this State, and are an abuse of the powers of said 
Board, and are, therefore, declared to be null and void ; and the plain- 
tiffs, as taxpayers of the City of Cincinnati, are entitled in behalf of 
said city, as well as in their own right, to the relief sought in their 
petition ; to which the City of Cincinnati and said Board, and the 
members, defendants, who voted for said resolutions, except. 

It is therefore adjudged and ordered, that the restraining order 
heretofore entered in this action be made perpetual, and that the City 
of Cincinnati, and said Board of Education, and the members and 
officers thereof, and teachers, and all other persons acting in aid or 
assistance of the said Board, be and are each and all commanded to 
refrain from promulgating, or in any wise, directly or indirectly, 
enforcing the said resolutions set forth in the petition as passed 
by said Board, on the 1st day of November, a. d. 1869, or any 
other measures of the like nature or effect, and are enjoined not 
to give or permit any force or effect to be given to said resolu- 
tions in the common schools of said city; and that the costs of 
this action be paid by the City of Cincinnati. 



420 'Judgment. 

Minor et al. "v. Board of Education of Cincinnati el al. 

And thereupon the said defendants filed their motion for a new 
trial for causes therein alleged, which motion is overruled ; and the 
defendants excepted to said overruling, and to said judgment, and 
tendered their Bill of Exceptions in that behalf, which is accord- 
ingly allowed, signed, and ordered to be filed as part of the record. 



Ohio Valley Historical Series^ 



CINCINNATI. 



Ohio Valley Historical Series. 

In our Prospectus, issued in April, 1868, -we announced 
our intention of publishing, under this general title, a series 
of works relating to the early history of the Valley of the 
Ohio. It has not been our aim to give a consecutive history, 
but merely to collect and preserve by publication hitherto 
unpublished manuscripts of value relating to the subject, and 
to reprint some of the early works on Western history which 
are out of print and rare. 

In carrying out this design, we have already issued three 
works, which have been received with a favor beyond our 
most sanguine expectations, and on which a liberal patronage 
•has been bestowed. We now announce as ready for delivery 
a fourth, which we hope may prove acceptable. We have 
two more volumes now in press, and others in active prepara- 
tion, which will be announced in due time. 

We take this opportunity of expressing our obligations to 
the gentlemen of the press for their uniformly kind and appre- 
ciative notices of our Series, a/ad to numerous friends for the 
generous aid they have given us in procuring unpublished 
materials, as well as for many rare books, pamphlets, etc., 
relating to early times in the West, which we find exceed- 
ingly useful for editorial reference. 

ROBERT CLARKE & CO. 

Cincinnati, December, 1869. 



Number Four. 



McBrides Pioneer Biography, Vol. I. 

PIONEER BIOGRAPHY: Sketches of the LIVES 
OF SOME OF THE EARLY SETTLERS of 
Butler County, Ohio. By the late James McBride, of 
Hamilton. Vol. I. Containing the lives of John Reily, 
Thomas Irwin, Joel Collins, Isaac Anderson, Samuel 
Dick, Joseph Hough, and John Woods, with a portrait of 
the author. 

One volume, 8vo., pp. xiv, 352, finely printed on tinted paper, 
neatly bound in English cloth, gilt top, and uncut edges, or 
entirely uncut. Price, $3.50. 

A few large-paper copies have been printed on extra-heavy 
tinted paper. Portrait on India paper. Cloth, gilt top, and 
uncut edges, or entirely uncut. Price, $7.00. 

Vol. II will contain sketches of Capt. John Cleves Symmes, 
with a full explanation of his celebrated theory of Concentric 
Spheres; Robert McClellan, one of Gen. Wayne's scouts 
during his campaign in Ohio ; Judge Henry Weaver, Isaac 
Paxton, and other pioneers of note. 

These sketches will be found to possess an interest beyond 
the mere details of the lives of the individuals. They were all 
of them men who took an active part in the settlement of the 
Miami country, were prominent in public affairs both civil and 
military, and participated in many of the early conflicts with the 
Indians in Ohio and Kentucky, and in the campaigns of Gens. 
Harmar, St. Clair, Scott, and Wayne; so that, interspersed in the 
narrative, will be found many details of interest concerning the 
early struggles, from the notes and recollections of eye wit- 
nesses, which have never before appeared in print. 



Ohio Valley Historical Series. 



Number One. 



Bouquet's Expedition Against the Ohio Indians in 1764. 

ii A N HISTORICAL ACCOUNT of the EXPEDI- 
l\ TION against the OHIO INDIANS, in the year 
MDCCLXIV, under the command of HENRY BOUQUET, 
Esq., Colonel of Foot, and now Brigadier General in America, 
Including his Transactions with the INDIANS,' relative 
to the DELIVERY of their PRISONERS, and the PRE- 
LIMINARIES of PEACE, with an introductory account 
of the Preceding CAMPAIGN, and BATTLE of BUSHY- 
RUN. 

To which are annexed MILITARY PAPERS containing 
Reflections on the War with the Savages ; a Method of 
forming Frontier Settlements ; some account of the IN- 
DIAN COUNTRY; with a List of Nations, Fighting 
Men, Towns, Distances, and different Routes. 

Published from authentic Documents by a Lover of his Coun- 
try " (Dr. William Smith, Provost of the College of Philadel- 
phia). 



With a Preface by FRANCIS PARKMAN, author of 
" Conspiracy of Pontiac," etc., and a translation of Dumas' Bio- 
graphical Sketch of General Bouquet. 

The Map and Plates are finely reproduced by the Photo- 
Lithographic Process. 

One volume, 8vo., pp. xxiii, 162, finely printed on tinted paper, 
neatly bound in English cloth, gilt top, and uncut edges, or 
entirely uncut. Price, S3. 00. 

A few large-paper copies have been printed on extra-heavy 
tinted paper. Cloth, gilt top, and uncut edges, or entirely uncut. 
Price, $5.00 



Robert Clarke & Co., Cincinnati. 



[From the Round Table.] 

"A better initial volume to the Ohio Valley Historical Series could 
not be desired than this. Everything is in its favor — the beauty of the 
volume itself, an invariable characteristic of whatever leaves its pub- 
lisher's press ; the rarity of the work reprinted, the importance in the 
history of our anti-revolutionary colonizations of the events which 
occasioned the expedition; and, by no means the least, the brief 
explanatory preface added by Mr. Francis Parkman. * * * So 
that, while the antiquarian or historian will get most out of the work, 
the average reader will find in it no small pleasure along with the side 
light it throws upon the events of a period of which popular ideas are 
vague and undefined." 

[From the Cincinnati Gazette.] 

"It is, in short, a worthy beginning to an enterprise which must 
commend itself to all scholars and literary men, and which reflects 
credit upon Cincinnati, as well as upon the enterprise and tact of the 
publishers." 

[From the New England Historical and Genealogical Register.] 

"This is the first of the reprints of the Ohio Valley Historical Series, 
now in course of publication by Messrs. Clarke & Co., and is pre- 
sented to us in a shape and style befitting the ' rarity of the volume, 
and its intrinsic value as an authentic and reliable narrative of one of 
the earliest British military expeditions into the territory North-West 
of the Ohio River.' * * * The volume is elegantly printed 
on tinted paper, has a good index, and is an honor to the enterprising 
publishers." 

[From the American Literary Gazette and Publisher's Circular.] 

"This is the first volume of the Ohio Valley Historical Series, just 
commenced by Robert Clarke & Co., Cincinnati. We have hereto- 
fore spoken of the plan of the projected series. It will undoubtedly 
form a valuable material for history. We can not too highly commend 
the admirable manner in which the publishers have produced the work. 
The paper and typography are unexceptionable. The original maps 
and plans are most successfully reproduced according to the ' Osborn 
Process,' by the American Photo-Lithographic Company, and the 
entire manufacture reflects credit on the skill and taste of Messrs. 
Clarke & Co." 

f From the Atlantic Monthly.] 

" The whole narrative is most entertaining for the interest of the 
subject, and for the quaintness of that highly literary style of the last 
century in which it is written. *■**'* 

"Its quaintness every one must relish, and none can help noticing 
the clearness and solidity of the narration. * * * It is an enter- 
prise to which we heartily wish success, both for the valuable matter 
it will preserve for the use of the student and the pleasure it will afford 
the general reader." 



Ohio Valley Historical Series. 



Number Two. 

Walker s History of Athens County^ Ohio. 

HISTORY OF ATHENS COUNTY, OHIO, and 
incidentally of the OHIO LAND COMPANY and 
the FIRST SETTLEMENT OF THE STATE at 
MARIETTA, with Personal and Biographical Sketches of the 
Early Settlers, Narratives of Pioneer Adventures, 
etc. By Charles M. Walker. 

Illustrated with an original Map, showing the lands purchased 
by the Ohio Company, the Donation Tract, and Athens County, 
Past and Present, with fine Steel Portraits of Hon. Thomas 
Ewing, Sr., Bishop Ames, Judges Ephraim Cutler and Isaac 
Barker, and General John Brown. 

One volume, 8vo., pp. viii, 600, finely printed on tinted paper, 
neatly bound in English cloth, gilt top, and uncut edges, or 
entirely uncut. Price, $6.00. 

A few large-paper copies have been printed on extra-heavy 
tinted paper. Portraits on India paper. Cloth, gilt top, and 
uncut edges, or entirely uncut. 2 vols. Impl. 8vo. Price, 
$12.00. 

[From the Historical Magazine.] 

"We have never found a more complete local history, nor one in 
which the author has more successfully labored to present the annals, 
the statistics, and the local biographies of a community, with fidelity 
and elaborate minuteness; and as a specimen of really elegant typogra- 
phy, it is worthy of all praise." 

[From the Cincinnati Commercial.] 

"It is a work so thorough, so complete, so carefully prepared, that 
it will remain for many years the history of the territory embraced 
within the early limits of the county. The typography is superb, and 
the portraits are executed in the best style of steel line engraving." 
[From the New York Tribune.] 

"The publication of the Ohio Valley Historical Series, of which this 
elegant work forms the second volume, is an enterprise for which men 
of letters are under deep obligation to the good sense and good taste of 
the publishers. * * ^ The present volume, though modest in its 
pretensions, claiming little more than a local interest, is far more valuable 
in its contents than its title or its unpretending preface might lead one 
to suppose. It embraces a history of the great Ohio Land Company 
and the first settlement of the State at Marietta, with biographical 



Robert Clarke £s? Co.. Cincinnati. 



sketches of the pioneers of that part of Ohio, and a map which pos- 
sesses considerable historical interest. Quite apart from its intrinsic 
value, the work also deserves to be prized as a dainty specimen of 
handiwork, rarely surpassed by the best New York and Boston book- 
sellers, to say nothing of those of the West. The type is sumptuous, 
the paper heavy, the binding neat and strong, and the general typo- 
graphical arrangement extremely tasteful." 

[From the New England Historical and Genealogical Register.] 

"After years of patient and intelligent industry, Mr. Walker has 
succeeded in gathering together and presenting to us, in a very con- 
densed form, the history of the county of Athens from its first feeble 
beginning, with sketches and statistics relating to "he bloody Indian 
wars, the war of 1812, and the late civil war. It is also full of statis- 
tics relating to the several towns, such as the names of the officers, 
county and municipal ; a history of its churches, schools, libraries, 
newspapers ; with a description of its agricultural products, and of its 
mineral, manufacturing, and railway resources. All this must make a 
volume of surpassing interest and value to the inhabitants of the county 
and to the people of the State generally. 

"Besides the above, Mr. Walker gives us his biographical sketches 
of the leading men connected with the settlement and history of the 
county, and this feature of the work gives it a peculiar interest for us ; 
for the larger number of these were natives of New England, and many 
of them men of high character and standing here. In fact, the whole 
enterprise, begun and carried on by the Ohio Land Company, was the 
work of some of the leading spirits of New England, who had been 
active participators in the Revolutionary war. We know not where 
else so much information can be obtained relating to the origin and 
history of this company. The men engaged in it, and the emigrants 
they led to the North- West Territory, gave to the population of Ohio 
much of the character of its present population and many of the ele- 
ments of their- extraordinary prosperity. 

"The volume is beautifully printed, and is in all respects one of the 
handsomest and most complete local histories we have ever seen." 
[From the Cincinnati Chronicle.] 

"The volume is one of the most admirable local histories we have 
ever seen. * * * Mr. Walker has done his work well and thor- 
oughly. He has exhibited excellent taste and judgment, and his sty^e 
is free from the objectionable features which too often mar and render 
comparatively valueless histories of this class." 
[From the Cleveland Leader.] 

"A book full of interest to every citizen of Athens county, and inci- 
dentally to every inhabitant of Ohio, as a record of the first settlement 
of the State. * * * * Mr. Walker seems to have enjoyed unre- 
stricted facilities for the collection of data, and has worked up his 
subject with evident care and judgment. The result is, perhaps, the 
best county history ever written in the State." 



Ohio Valley Historical Series. 



Number Three. 

Clark's Campaign in the Illinois in 1778-9. 

fT*OL. GEORGE ROGERS CLARK'S SKETCHES 

V^ of his CAMPAIGN IN THE ILLINOIS IN 1778-9, 
with an Introduction by Hon. Henry Pirtle, of Louisville, 
Ky., and an Appendix containing the Public and Private Instruc- 
tions to Col. Clark and Maj. Bowman' 's 'Journal of the Taking of 
Post St. Vincents. 

One volume, 8vo., pp. viii, 119, finely printed on tinted paper, 
with a Portrait of General Clark, neatly bound in English cloth, 
gilt top and uncut edges, or entirely uncut. Price, $2.00. 

A few large-paper copies have been printed on extra-heavy 
tinted paper. Portrait on India paper. Cloth, gilt top, and 
uncut edges, or entirely uncut. Price, $4.00. 

[From the Atlantic Monthly.] 

"The publishers of the Ohio Valley Historical Series here follow the 
narrative of Colonel Bouquet's Expedition (already noticed in these 
pages) with another volume possessing the same curious interest for the 
student of history, and the same fascination for the lover of exquisitely 
printed books ; for the series, so far, is luxurious in paper and binding, 
and in typographical execution is surpassed by few productions of the 
American press. 

" Colonel Clark's campaign was a very brief one, and in fighting not 
particularly arduous, as would appear from his own showing ; but it 
was full of daring and heroic endurance; it resulted immediately in the 
reduction of the British military posts between the Ohio and the Mis- 
sissippi, thus giving tranquility to all the frontier settlements, and it 
finally secured to us all this vast territory. * * & * 

" A little of the romance which belongs to all French colonial his- 
tory hangs about Colonel Clark's unconscious page, and his sketch 
affords here and there a glimpse of the life of the babitans in the old 
seventeenth-century settlements of the French at Kaskaskias, Cahokia, 
and St. Vincents ; but for the most part it is a plain and summary 
account of the military operations, and depends for its chief inter- 
est upon the view it affords of the character of as brave and shrewd 
a soldier and as bad a speller as ever lived. Some of his strokes of 
orthography are unrivaled by the studied grotesqueness of Artemus 
Ward or Mr. Yellowplush ; he declares with perfect good faith that 
on a certain occasion he was very much " adjutated ;" and it is quite 
indifferent to him whether he write privilidge, happiniss, comeing, 
attacted, adjutation, sucksess, leathergy, intiligence, silicit, acoutri- 



Robert Clarke £s? Co., Cincinnati. 



ments, refutial, and anctious, or the more accepted forms of the same 
words, as like a bona fide bad speller, he is quite as apt to do. * * * * 

" The letter is now printed for the first time. We heartily com- 
mend it to all who love to taste history at its sources, or who enjoy 
character. It is a curious contrast to the polite narrative of Colonel 
Bouquet, but it is quite as interesting, and the deeds it records have 
turned out of vastly greater consequence than those which the brave 
Swiss performed." 

[From the Historical Magazine.] 

"The importance of the expedition of Colonel Clar'c is known to 
every well-informed person as that to which we are mainly indebted 
for our possession, to-day, of the immense range of country west of the 
Alleghanies ; and this personal narrative of that expedition, from the 
pen of its commander, it will be seen, is necessarily a paper of great 
historic interest, both as a portion of the local history of the West and 
as an element in the history of our relations with Great Britain, France, 
and Spain. The typography of the volume is excellent." 
[From the Nation.] 

"A very original and striking revolutionary character is portrayed by 
himself in ' Col. George Rogers Clark's Sketch of his Campaign in 
the Illinois in 1778-9.' * * * Clark's military capacity was cer- 
tainly of a high order, and it is seldom one reads of a commander pos- 
sessing such boldness, resources, and tact. • He understood perfectly, 
for military purposes, the Indian nature, and how to exhibit at the right 
time courageous defiance and magnanimity. * * * The operations 
at Kaskaskia and Vincennes are described in a very graphic but truly 
modest manner — the march from the former post to take the latter being 
one of extraordinary hardship and enterprise. The odd spelling of the 
French, Spanish, and Indian names mentioned by Clark, and his ordinary 
orthography, too, make his narrative quite amusing. Some persons may 
guess what ' Messicippa,' ' La prary de rush ' (La Prairie du Rocher), 
'Canoweay' (Kanawha), 'adjutated,' and ' adgetation,' stand for. * * 
The notes of the editor of this volume add very much to its readable- 
ness and historical completeness." 

[From the New Albany Ledger.] 

" The quaint style of the' original is faithfully retained, with Clark's 
orthography, punctuation, capital letters, and other peculiarities. The 
narrative is exceedingly interesting, and bears the impress of truth upon 
its pages. * * * The volume should find a place in the library of 
every Indianian who takes an interest in the events which had such 
momentous influence on the destinies of the region of country in which 
we now live." 

[From the Louisville Courier- Journal.] 
" The volume is gotten up in antique, and realizes all that the anti- 
quary could desire. Judge Pirtle's preface is not the least valuable of 
the contents, which are in every way rare and valuable.. It presents 
the reader with a distinct and graphic picture of Clark and his times." 



io Ohio Valley Historical Series. 



In Press. 



Dr. Drake 's Pioneer Life in Kentucky. 

PIONEER LIFE IN KENTUCKY : A Series of Rem- 
iniscential Letters addressed to his Children, giving a 
Faithful and Graphic Description of Pioneer Life. By the late 
Daniel Drake, M. D., author of "Cincinnati in 1815," etc 
Edited, with a Memoir, by his son, Hon. Charles D. Drake, 
of St. Louis. 



Smith's Captivity with the Indians. 

A REPRINT of "AN ACCOUNT of the REMARK- 
ABLE OCCURRENCES in the Life and Travels of 
Col. JAMES SMITH (now a citizen of Bourbon county, Ky.), 
during his Captivity with the Indians in the years 1755, '56, 
'57, '58, and '59. In which the Customs, Manners, Traditions, 
Theological Sentiments, Mode of Warfare, Military Tactics, 
Discipline and Encampments, Treatment of Prisoners, etc., are 
better explained and more minutely related than has been here- 
tofore done by any author on that subject. Together with a 
Description of the Soil, Timber, and Waters, where he traveled 
with the Indians during his captivity. 

"To which is added a Brief Account of some very Uncom- 
mon Occurrences, which transpired after his return from cap- 
tivity ; as well as of the Different Campaigns carried on against 
the Indians to the Westward of Fort Pitt, since the year 1755 
to the present date. 

" Written by himself. Lexington ; printed by John Bradford, 
on Main street, 1799." 



Robert Clarke & Co., Cincinnati. n 

ROBERT CLARKE & CO. 

Also Publish the following Works : 

Legends of the West; 

Sketches Illustrative of the Habits, Occupations, Privations, 
Adventures and Sports of the Pioneers of the West. 

By James Hall. 

Author of 'The Wilderness and War Path," "Tales of the Border," etc. 

i2mo. cloth, gilt top, or entirely uncut. Price, $2.00. 



By the Same Author. 

Romance of Western History; 

Or, Sketches of History, Life, and Manners in the West. 
i2mo. cloth, gilt top, or entirely uncut. Price, $2.00. 



Historical Collections of Ohio; 

Containing a Collection of the most Interesting Facts, Tradi- 
tions, Biographical Sketches, Anecdotes, etc., relating to its 

LOCAL AND GENERAL HISTORY, 

with Descriptions of its Counties, Cities, Towns, and Villages. 
Illustrated with 177 Engravings. 

By Henry Howe. 
8vo. 620 pages. Price, $6.00. 

One hundred copies printed on tinted paper and bound in cloth, 
gilt top, or entirely uncut, uniform with the " Ohio Valley His 
torical Series." 



12 Rare American Tracts. 

ROBERT CLARKE & CO. 

ALSO PUBLISH 

Reprints of the following Rare American Tracts : 

N APPEAL TO THE PUBLIC ON BEHALF OF 
CAMERIA (America), A Young Lady tvho was almost 
Ruined by the Barbarous Treatment of her own Mother. London. 
Printed in the year 1781. 

The edition consists of 124 small-paper copies, octavo, finely 
printed on tinted paper, sewed, uncut, price 75 cents ; 25 large- 
paper copies, also on tinted paper, sewed, uncut, price $1.50. 



SOME ACCOUNT of an Existing Correspondece now 
Carrying on Between the Inhabitants of the Moon 
(America) and the Natives of this Country ; To which is 
subjoined a List of such Articles as are immediately wanted for 
the Export Trade. By some Merchants just arrived from that 
Planet. Interspersed with several useful and valuable Hints, 
particularly adapted to the use of those Gentlemen who are fond 
of Speculation. A Work strongly recommended to the Perusal 
of the Merchants, Bankers, Manufacturers, Wholesale Trades- 
men, Shopkeepers, Underwriters, Insurance Brokers, and Ladies 
of Great Britain. London : Printed and sold by H. Fry, Fins- 
bury-Place, Finsbury-Square, 1800. 

The edition consists of 132 small-paper copies, octavo, finely 
printed on tinted paper, sewed, uncut, price 75 cents ; 27 large- 
paper copies, also on tinted paper, sewed, uncut, price $1.50. 

[From the Round Tabic] 

" We have just now before us a pamphlet (Cameria) from the press of Robert Clarke 
& Co., of whose beauty we remain within bounds when we say it is surpassed not 
merely by nothing we have seen from the best Boston, New York, or Philadelphia 
presses, but that, in simple elegance, it is not inferior to the finest workmanship of 
London or Edinburgh. * * * * But aside from its merits for a half 
hour's amusement, or whatever value it has as a historical curiosity, its beauty alone 
should make it prized." 

[From the Cincinnati Chronicle.] 

" It is a fac simile of the original brochure, most beautifully executed, in the highest 
style of the typographical art. It is very creditable to the good taste and judgment of 
the firm. " : * * * The Cameria appeared in the Edinburgh Evening Post of the 
4th of March, 1781 ; and, said the original publishers, 'as it bears a lively resemblance 
to the manner of the late admirable Dean Swift, and contains some striking allegorical 
passages, it is hoped that it will afford the reader some rational entertainment.' " 



Rare American Tracts. 13 

ROBERT CLARKE & CO. 

have just published 

A reprint of the rare American Tract ; 

ENTITLED, 

THE 

COW CHACE: 

AN 

HEROIC POEM IN THREE CANTOS. 

WRITTEN AT NEW YORK, 1780. 

By the late MAJOR ANDRE. 

With Explanatory Notes by the Editor. 

This is reprinted from the rare quarto edition published in London, in 
1 781, with the original preface, notes, etc. 

Neatly printed, on tinted paper. 

Small paper, 8vo. (edition, 125 copies), sewed, uncut. Price, 
75 cents. 

Large paper, Impl. 8vo. (edition, 25 copies), sewed, uncut. 
Price, $1.50. 

Sent by mail, prepaid, on receipt of the price. 



14 The Bible in the Public Schools. 

THE 

Bible In the Public Schools 



ARGUMENTS 



IN THE CASE OF 



io\n £jj. 3§&it{or d zh. 



Vcr 



z §am[d of J@dttottum of tf(e <^itg of ^incintmti tt nh. 



SUPERIOR COURT OF CINCINNATI 



WITH THE 

OPINIONS AND DECISION 
Of tlie Court. 



i vol., 8vo., cloth, §2.00 

On tinted paper, gilt top, cloth extra, - - 2.50 

Sent by mail, prepaid, on receipt of the price. 

ROBERT CLARKE & CO., 

PTTBLISHBES, 

Cincinnati, Ohio. 



Should be in every Family and Sunday School Library. 






OB, 

LETTERS FROM EGYPT, PALESTINE, AND OTHER 
LANDS OF THE ORIENT. 

Illustrated with Engravings, Maps, etc. 
By N. C. BURT, D. D., 

Author of u Hours Among the Gospels" "The Land and its Story," etc. 
1 Vol. mno. Cloth, Tinted Paper, - - $1.75. 

fi®* Sent by mail, prepaid, on receipt of the price. 

NOTfiCES OF THE PRESS. 

From the Am. Literary Gazelle and Publishers Circular. 

>> * * "There runs all through the volume a continuous vein of geniality, and, at times, of 
positive humor, a sympathy with all the persons and places visited, yet an eye to the ludicrous, 
and an apt suggestion of scholarship just at the right time and place. * * The pervading 
Btyle is neat and graphic. We have not, for a long time, met with any work of tliis class which 
was really more enjoyable." 

From the New York Nation. 

" "We do not remember a Nile tourist who exhibits more plainly, or more feelingly, that inti- 
macy with the sky which must result from the monotony of the river scener3 T . The colors of 
morning and evening are noted, if not with warmth, at least with apparent precision, which, 
perhaps, is to be said of all Dr. Burt's descriptions. He is also the first, so far as we know, to 
set down the music of the boatmen of the Nile, which has been often alluded to, and sometimes 
In comparison with the blacks of the sea islands." 

From the Christian Instructor. 

"Having passed over much of the ground, and mingled in the very scenes described, we take 
real pleasure in commending the correctness of its general descriptions, and having made use of 
letters written on the spot and at the time, there is a special freshness and zest about the work. 
Dr. Burt evidently possesses a genial nature, and has the admirable talent of being able to travel 
in all sorts of ways, and among all sorts of people, without continually finding fault and dis- 
tressing his readers with complaints." 

From the Philadelphia Presbyterian. 

" We assure our readers that they will find Dr. Burt's book one of great attractiveness, giving, 
as it does, fresh and vivid descriptions of the scenes made forever sacred by their connection 
with the history of the chosen people, or the earthly life of our blessed Lord. There is no story 
so fascinating as that which tells of journeyiugs through these old lands, and Dr. Burt has told 
his story well." 

From the Pittsburg Commercial. 

" A book of extraordinary interest and ability. We know of no work giving so much instruc- 
tion and entertainment in the same number of pages. It should be in every family and Sunday 
school library." 

From the Cincinnati Gazette. 

" He so skillfully avoided threadbare subjects, and so happily and simply described the men 
and scenes encountered in his travels ; so exactly hit the popular taste in telling just what the 
mass of readers are curious to know, that his correspondence has the freshness of a story related 
for the first time." 

From the New York Observer. 

* tf "The amount of information embodied, and the graceful, easy, and spirited way in which 
it is imparted, make the book a valuable addition to our stock of ' travels.' " 



y F 

Robert Clarke & Go, 

HAVE JUST PUBLISHED 

The Wine-Maker's Manual : a Plain, Practical Guide to all the 
Operations for the Manufacture of Still and Sparkling Wines, 
embracing Chapters on the Vintage, When and How to Pick and 
Cull Grapes ; Preparations for Wine-making ; the Ingredients and 
Improvements of "Must"; Fermentation and the Changes pro- 
duced by it ; the Heating or Firing, Keeping and Bottling of 
Wines ; Still, Sparkling, Sweet, Spiced, and Frozen Wines ; 
Wine Colors ; the Constituents, Acidity, and Ailments of Wine ; 
Artificial and Imitation Wines. The work also contains full 
instructions for making Cider, Fruit and Berry Wines, etc., etc. 
By Charles Reemelin, Author of the u Vine-Dresser's Manual." 
i vol. i2mo. Extra Cloth. Price, $1.25. 

PUBLISHED LATELY. 

Vineyard Culture Improved and Cheapened ; by A. Du Breuil, 
Professor of Viticulture and Arboriculture in the Royal School 
of Arts and Trades, Paris. Translated by E. and C. Parker, 
of Longworth's Wine House. With Notes and Adaptations to 
American Culture, by John A. Warder, Author of American 
Pomology. With 144 Illustrations. One vol. i2mo., neatly 
printed and bound. 

Price, cloth, $2.00. Beveled cloth, gilt top, $2.25. 

The Principles and Practice of Land Drainage : Embracing 
a Brief History of Underdraining ; a Detailed Examination of 
its Operation and Advantages ; a Description of Various Kinds 
of Drains, with Practical Directions for their Construction ; the 
Manufacture of Drain-Tile. Illustrated with nearly 100 En- 
gravings. By John II. Klippart, Author of the "Wheat Plant," 
Corresponding Secretary of the Ohio State Board of Agricul- 
ture, etc. Second Edition. 

One vol. i2mo. Price, Si. 75. 

Any of the above sent by mail, prepaid, on receipt of the price. 

ROBERT CLARKE & CO. 

Publishers, Booksellers, Importers, Stationers, Printers, and Blank Book Manufacturers, 

No. 65 West Fourth Street, Cincinnati. 



